BRIJ LALversusSTATE OF RAJASTHAN

                             [2016] 7 S.C.R. 176


A                                 BRJJ LAL
                                      v.
                          STATE OF RAJASTHAN
                      (Criminal Appeal No. 991 of2010)
B                            AUGUST 17, 20 I 6
       [JAGDISH SINGH KHEHAR AND ARUN MISHRA, JJ.)
           Penal Code, 1860: s.302 - Murder - Prosecution case was
    that appellant and PW-15 were both employed in the same
    department - Appellant used to hurl abuses at PW-15 under the
c   influence of liquor - D.ue to this, PW-15 shifted and took house of
    PW-1 on rent - On the fateful day, appellant and co-accused armed
    with pistols came to the new residence of PW-15 and started hurling
    abuses at PW-15 and threatened to kill him - PW-I asked him to go
    away - Hearing commotion, the neighbours and co-villagers
D   requested the appellant and co-accused to go away - Thereafter,
    appellant fired at the gathering - Two persons received bullet
    injuries from the shots fired by him - One died on the spot and
    other received serious injuries and died the next day - Co-accused
    also fired from his gun which hit a woman who died on the spot and
    two others including a 5 year old child received injuries - Trial
E
    court accepted plea of self defence raised by appellant and ordered
    acquittal - However, High Court held him guilty uls.302 - On
    appeal, held: Evidence· produced by the prosecution affirmed that
    the crowd which had gathered at the place of occurrence
    comprised of men, women and children who were unarmed - It
F   cannot be overlooked, that one of the deceased was a woman, and
    one of the injured was 5 years old - Thus, no material evidence
    was produced by appellant to demonstrate that gunshots fired by
    him was in self-defence - Recovery of the weapon was also made
    at the instance of the appellalll - The fact, that there was a distance
    of about 17 to 18 feet between the appellant and the villagers, shows
G
    that there was no real threat to him when he fired shots at the
    unarmed gathering - Prosecution witnesses, duly identified the
    accused-appellant - The statements of the prosecution witnesses
    clearly led to the inference, that the appellant was guilty of having
    committed the offence u/s.302 - Appellant-accused not entitled to
H   benefit of doubt.
                                       176
           . BRIJ LAL v.    STATE OF RAJASTHAN                        177



     Dismissing the appeal, the Court                                 A
       HELD: 1. There is evidence on the record of the case to
authenticate, that all the villagers were only persuading the
accused-appellant his co-accused not to insist on carrying out
their threat, to murder PW-15. The testimony of the prosecution
witnesses also demonstrates, that there was substantial distance      B
between tht Yillagers, and the place where the accused were
standing. Not only PW-1, but also PW- 15, expressly deposed
that none of the neighbours and co-villagers, was armed.
Moreover, the reiteration by the witnesses, that the crowd
comprised of men, women and children, by itself is sufficient, to
infer that the neighbours and co-villagers were not aiming at         c
causing any harm or injury to the accused-appellant or the
co-accused. It cannot be overlooked, that one of the deceased
was a woman, and one of the injured was a child of 5 years. Thus,
no material evidence was produced by the appellant (to
demonstrate that gunshots fired by the accused and the co-accused     D
were in self-defence. [Para 15] [193-C-F]
      2. It was not disputed by the accused-appellant that three
fatal (besides other) injuries, were caused by the accused-
appellant and his co-accused. Therefore, the onus lay on the
appellant to demonstrate the reason and the justification for their    E
action. The evidence produced by the prosecution demonstrated
that the accused had fired gunshots indiscriminately, on being
angered by the gathering, which was trying to persuade them
from carrying out their singular objective - to cause harm to the
person of PW-15. Having accepted, that they had actually fired
at the neighbours and the villagers, who had gathered at the place     F
of occurrence, it does not lie in their mouth to raise such a plea.
[Para 18] (195-G-H; 196-A]
      3. The next contention for the appellant was, that the
recovery of the weapon, namely, the gun, with which the accused-
a ppellan t shot at the crowd, was not proved to have been            G
recovered from the appellant. Such a plea could have been raised
only if the appellant had been in denial, and had adopted the
stance, that he had not fired at the crowd at the time of
occurrence. Since that is not his plea, the instant submission is
wholly misconceived. [Para 19] [f96-B-D]                              H
178           SUPREME COURT REPORTS                      (2016) 7 S.C.R.


A           4. The next contention for the appellant was, -that the co-
      accused who was separately tried, was acquitted and that the very
      same witnesses, who were relied upon by· the prosecution in the
      separate trial of the appellant, had deposed during the course of
      the trial conducted against the co-accused and as such, the
      acquittal of co-accused and the conviction of the accused-appellant
B
      made no sense whatsoever. The entire prosecution story
      revolved around the fact, that the accused-appellant and the
      co-accused were out and out to harm PW-15, on account of their
      previous discord. In the judgment whereby the co-accused was
      acquitted, most of the prosecution witnesses had resiled, and did
c     not identify the co-accused as the person involved in the
      occurrence. The position in the present case is just the reverse.
      All the relevant prosecution witnesses, duly identified the
      accused-appellant. It is therefore not possible to accept, that
      the accused-appellant deserves to be acquitted, because of the
      acquittal of co-accused in the separate trial conducted against
D
      him. [Para 201 1196-F-H; 197-C)
            5. The next contention for the appellant was, that as a
      consequence of the aggressive attitude of the neighbours and
      the co-villagers, who had gathered at the place of occurrence,
      the accused-appellant and the co-accused were pushed back to a
E     distance of about 200 feet from the house of PW-1. The
      prosecution has clearly demonstrated through the testimony
      recorded on oath, that none of the persons gathered at the place
      of occurrence was armed in any manner. It is also apparent, that
      the crowd gathered at the place of occurrence was <>omprised of
F     men, women and children. The fact, that there was a d1:.!ance of
      about 17 to 18 feet between the accused-appellant and the
      villagers, shows that there was no real threat to him when he
      opened firing at the unarmed gathering including women and
      children. It was only because of their desire to retaliate against
      the crowd, consequent upon the crowd having gathered to protect
G     PW-15, cannot be a satisfactory reason for the appellant to fire
      gunshots indiscriminately. [Para 21) [197-D-H; 198-A-B]
            6. The last contention for the appellant was, that PW-15
      was also a part of the crowd, which the accused-appellant and the
      co-accused were facing, and as such, he ought to have fired at
H
               BRIJ LAL v. STATE OF RAJASTHAN                          179


 him, rather than at the other members of the crowd. The accused- A
 appellant did not even make the above suggestion to the
 prosecution witnesses, when they were being cross-examined
 on his behalf. Moreover, the actual suggestion given was, that
 the accused had come to a general merchant shop to buy "biris"
 (traditional cigarettes), and that, they never come to the place of
                                                                     B
 occurrence, or that, they had any intention to harm PW-15. There
 is no merit in the instant contention, and the same is also hereby
 rejected. The statements of the two prosecution witnesses,
 namely, PW-1 and PW-15, along with the testimony of the other
 witnesses, would clearly and unequivocally lead to the inference,
 that the accused-appellant was guilty of having committed the c
 offence under Section 302 of the IPC. There is absolutely no
 question of extending the benefit of any doubt to the accused-
 appellant in the present case. (Paras 22, 24] [198-C-E; 200-A-C].
       Buta Singh v. State of Punjab (1991) 2 SCC 612 - held
       inapplicable                                                    D
           I

       Bhagwan Swaroop v. State of Madhya Pradesh (1992)
       2 SCC 406: 1992 (1) SCR 466; Sun ii Kumar
       Sambhudayal Gupta v. State of Maharashtra (2010) 13
       SCC 657:2010 (15) SCR 452 - referred to.
                        Case Law Reference                              E
 19~~ (1) SCR 466               referred to            Para 16
 (1?91) 2 sec 612               held inapplicable      Para 16
· 2010 (15) SCR 452             referred to            Para 23
                                                                        F
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
 991 of2010.
      From the Judgment and Order dated 17.11.2009 of the High Court
 ofRajasthan at Jodhpur, in D. B. Criminal Appeal No. 227of1985.
                                                                       G
     Huzefa Ahmadi, Sr. Adv., B. P. Sarangi, Tejasvi Ku~ar, Vinod
 Kumar K., Ms. Shahrukh Alam, Ambar Qamaruddin (For Mrs. M.
 Qamaruddin), Advs. for the Appellant.
      Puneet Parihar (For Milind Kumar), Adv. for the Respondent
                                                                       H
180             SUPREME COURT REPORTS                           [2016] 7 S.C.R.



A           The Judgment of the Court was delivered by
             JAGDISH SINGH KHEHAR, J. I. According to the al legations
      levelled in the complaint, the appellant-Brij Lal and Mohan Lal - PW-15
      were both employed in the Irrigation Department of the State
      Government. They were both holding the posts of Gauge Reader. They
B     also resided in government quarters at Suleman-ki-Head, close to one
      another. The appellant-Brij Lal allegedly used to hurl abuses at Mohan
      Lal - PW-15 under the influence ofliquor. Some others, including Kashi
      Ram, co-accused, used to side with the appellant - Brij Lal, in his
      misbehaviour with Mohan Lal - PW-15. In order to settle the dispute
      amicably Mohan Lal - PW-15 called a "panchayat" (council). The
c     endeavour of Mohan Lal - PW-15, through the panchayat, proved
      unsuccessful. Eventually, he addressed a communication dated 18.8.1983,
      to the Assistant Engineer of the Irrigation Department, highlighting the
      inimical attitude of the appellant-Brij Lal. Since the said complaint also
      did not lead to any fruitful result, Mohan Lal- PW-15 quit his government
D     accommodation, and took up rental accommodation in the house of Mohan
      Ram - PW-I.
             2. The incident which has given rise to the present appeal, occurred
      on 30.9.1983 at around 9 p.m., at the house of Mohan Ram - PW-I, i.e.,
      the premises to which Mohan Lal - PW-15 had shifted, to keep himself
E     away from the appellant-Brij Lal. At the time of occurrence, Mohan
      Lal - PW-15 was present in the said premises, along with his wife and
      children. It was alleged, that the appellant-Brij Lal and the co-accused -
      Kashi Ram hurled abuses at Mohan Ram - PW- I, who was sitting outside,
      in front of his house. The appellant and the co-accused asked Mohan
      Ram - PW-I, to call out Mohan Lal - PW-15, as they wanted to kill him.
F     It was the assertion of Mohan Ram - PW- I, who eventually lodged the
      complaint, that he had requested the appellant-Brij Lal and the co-
      accused - Kashi Ram, not to create any trouble at his. house. He asked
      them to fulfill their intentions at some other place. Unmindful of the
      advice tendered by Mohan Ram - PW- I, the appellant and the co-accused
G     started hurling abuses at Mohan Ram- PW-I. At that juncture, Mohan
      Ram - PW-I realized, that the accused and the co-accused were in
      possession of pistols. Mohan Lal - PW-15, having heard the appellant
      and the co-accused hurling abuses, and also, threatening to kill him, scaled
      the boundary wall of the premises, and hid in the flour mill of Milkha
      Singh, located in close vicinity of the house of Mohan Ram-PW-I.
H
               BRIJ LAL v. STATE OF RAJASTHAN                                    181
                  [JAGDISH SINGH KHEHAR, J.]

       3. Hearing the altercation and the phone-calls made by Mohan              A
Ram - PW-I and Mohan Lal - PW-15, neighbours and co-villagers,
came to the place of occurrence. They too requested the appellant -
Brij Lal, and the co-accused- Kashi Ram, to go away. Instead ofleaving,
the accused-appellant, as well as, the co-accused openly proclaimed,
that they would not leave without killing Mohan Lal - PW-15. Under the
                                                                                 B
pressure of the neighbours and the co-villagers, they moved towards the
front of the house of Sultan Bhat, located in front of the house of Mohan
Ram-PW-I. At that juncture, the neighbours and the co-villagers went
towards the spot at which the accused-appellant - Brij Lal and the
co-accused - Kashi Ram had retreated, and again requested them to
desist from their intentions. According to the assertions made in the            c
complaint, at the instance of the co-accused - Kashi Ram, the
appellant- Brij Lal fired at the gathering. Om Prakash and Sultan Bhat
received bullet injuries from the shots fired by Brij Lal. Om Prakash
died on the spot. Sultan Bhat was rendered unconscious. He was
removed to hospital, where he died on the following day, i.e., on I. I 0.1983.
                                                                                  D
Kashi Ram also fired from the gun in his possession. It hit Mst. Munni
Devi (a woman), who also died on the spot. In the firing under reference,
Labh Singh and Sheria (a 5 year old boy) were also injured. The report
of the above incident was lodged by Mohan Ram-PW-I, on J.10.1983
at 12.05 a.m.
       4. It is also relevant to mention, that the appellant- Brij Lal and
                                                                                  E
the co-accused - Kashi Ram got themselves admitted to a hospital. As
soon as they heard about the, death of Sultan Bhat, they ran away from
the hospital. The appellant - Brij Lal was however, arrested on
10.10.1983. Based on the disclosure statement made by him, a 12 bore
pistol and an empty cartridge were recovered. The co-accused - Kashi              F
Ram was successful in evading his arrest. After investigation, the
appellant-Brij Lal was charged under Sections 302, 307 and)24 read
with Section 34 of the Indian Penal Code (hereinafter referred to as, the
IPC) and Sections 25 and 27 of the Indian Arms Act, by the Judicial
Magistrate No.I, Sri Ganganagar. The learned Magistrate committed
the case to the Court of Session, which framed charges against the                G
appellant- Brij Lal, under the provisions referred to hereinabove.
      5. The accused appellant- Brij Lal, pleaded innocence. He sought
recourse to the plea of private defence, under the second exception
under Section 300 of the IPC. Section 300, IPC is reproduced below:
                                                                                  H
182      SUPREME COURT REPORTS                           (2016] 7 S.C.R.


A     "300. Murder.-Except in the cases hereinafter excepted, culpable
      homicide is 1nurder, ifthe act by which the death is caused is done
      with the intention of causing death, or-
      Secondly. -]fit is done with the intention of causing such bodily
      injury as the offender knows to be likely to cause the death of the
 B    person to whom the harm is caused, or-
      Thirdly. -If it is done with the intention of causing bodily injury
      to any person and the bodily injury intended tq be in-flicted is
      sufficient in the ordinary course of nature to cause death, or-
      Fourthly. -If the person committing the act knows that it is so
 c    imminently dangerous that it must, in all probability, cause death
      or such bodily injury as is likely to cause death, and commits such
      a;:t without any excuse for incurring the risk of causing death or
      such injury as aforesaid.
      Jllustrations
 D
      (a) A shoots Z with the intention of killing him. Z dies in
      consequence. A commits murder.
      (b) A, knowing that Z is labouring under such a disease that a
      blow is likely to cause his death, strikes him with the intention of
      causing bodily injury. Z dies in consequence of the blow. A is
 E
      guilty of murder, although the blow might not have been suffi-cient
      in the ordinary course of nature to cause the death of a person in
      a sound state of health. But if A, not knowing that Z is labouring
      under any disease, gives him such a blow as would not in the
      ordinary course of nature kill a person in a sound state of health,
 F    here A, although he may intend to cause bodily injury, is not guilty
      of murder, if he did not intend to cause death, or such bodily injury
      as in the ordinary course.of nature would cause death.
      (c) A intentionally gives Z a sword-cut or club-wound sufficient
      to cause the death of a man in the ordinary course of nature. Z
;G    dies in consequence. Here, A is guilty of murder, although he rriay
      not have intended to cause Z's death.
      (d) A without any excuse fires a loaded cannon into a crowd of
      persons and kills one of them. A is guilty of murder, although he
                              '
      may not have had a premeditated     design to kill any particular
 H    individual.
              BRIJ LAL v. STATE OF RAJASTHAN                                  183
                 [JAGDISH SINGH KHEHAR, J.]

      Exception I.-               xxx              xxx               xxx      A
      Exception 2.-Culpable homicide is not murder ifthe offender, in
      the exercise in good faith of the right of private defence of person
      or property, exceeds the power given to him by law and causes
      the death of the person against whom he is exercising such right
      of defence witho'ut premeditation, and without any intention of         B
      doing more harm than is necessary for the purpose of such
      defence.
      Illustration
      Z attempts to horsewhip A, not in such a manner as to cause
      grievous hurt to A. A draws out a pistol. Z persists in the assault.    c
      A believing in good faith that he can by no other means prevent
      himself from being horsewhipped, shoots Z dead. A has not
      committed murder, but only culpable homicide.
      Exception 3.-               xxx              xxx               xxx
                                                                               D
      Exception 4.-               xxx              xxx               xxx
      Exception 5.-               xxx              xxx               xxx''
After the statements of the prosecution witnesses were recorded, and
that of the appellant was recorded under Section 313 of the Code of
Criminal Procedure, even though an opportunity was afforded to the             E
appellant, to lead evidence in his defence, he chose not to produce any
witness on his behalf.                      ·
      6. Vide his judgment dated 22.1.1985, the Sessions Judge, Sri
Ganganagar, acquitted the appellant-Brij Lal by accepting the plea of
self-defence raised by him by invoking the second exception under              F
Section 300, IPC.
       7. Dissatisfied with the above judgment dated 22.1.1985, the State
ofRajasthan preferred D.B. Criminal Appeal No.227of1985, to assail
the order dated 22.1.1985 passed by the Sessions Judge, Sri Ganganagar.
The High Court rendered the impugned judgment on 17.11.2009, whereby           G
the appeal preferred by the State of Rajasthan was accepted. The
judgment rendered by the Sessions Judge, Sri Ganganagar dated
22.1.1985, acquitting the appellant-Brij Lal, was set aside. The appellant-
Brij Lal was found guilty of having committed the offence punishable
under Section 302 of the IPC. Keeping in mind the fact, that the
                                                                               H
    184              SUPREME COURT REPORTS                            [2016] 7 S.C.R.


    A       occurrence had taken place in 1983, the High Court awarded the sentence
            oflife imprisonment to the appellant-Brij Lal. It also imposed a fine of
            Rs.1,000/-, and in default thereof, awarded one year's rigorous
          · imprisonment, to the appellant.
•
                 8. The appellant has approached this Court, to assail the impugned
    8      judgment, rendered-by the High Court dated 17 .11.2009. During the
           course of hearing, learned counsel for the appellant, summarized the
           contentions advanced on behalf of the appellant, as under:
           Firstly, it was contended, that the factum that the appellant-Brij Lal had
           also suffered injuries, was sufficient to establish, that their retaliation by
    c      firing gunshots at the gathering, was a matter of self-defence, and nothing
           else. Secondly, it was urged, that the target of the appellant-Brij Lal, as
           per the prosecution story, was Mohan Lal - PW-15. And as such, there
           was no question of their having intentionally fired shots at the neighbours
           and co-villagers and therefore, could not have been held guilty of the
           offence under Section 302 of the IPC. Thirdly, it was submitted, that the
    D      recovery of the weapon, namely, the gun With which the appellant-Brij
           Lal, allegedly shot at the neighbours and co-villagers, resulting in the
           death of Om Prakash, Sultan Bhat and Munni Devi, was not proved to
           have been recovered from the appellant. And as such, in the absence of
           proof ofrecovery of the weapon used in the occurrence from the appellant,
    E      there was no justification, whatsoever, for the High Court to have found
           the appellant guilty of the offence under Section 302 of the IPC. Fourthly,
           it was submitted, that the co-accused - Kashi Ram, who was tried
           separately, was prosecuted in the same manner as the appellant. It was
           submitted, that the same witnesses as were produced by the prosecution
           against the appellant-Brij Lal, were also produced by the prosecution,
    F      against the co-accused - Kashi Ram. On the culmination of the trial
           against Kashi Ram, he was found innocent, and was acquitted. It was
           submitted, that the State of Rajasthan, chose not to prefer any appeal
           against the order ofacquittal of the co~accused- Kashi Ram. According
           to learned counsel, the prosecution cannot succeed in one case, and fail
    G      in the other, when the witnesses produced against both accused are the
           same. Fifthly, it was contended, that the evidence produced by the
           prosecution reveals, that the incident had occurred more than 200 feet
           away from the house of Mohan Ram - PW-I. Just the above fact,
           according to learned counsel, is sufficient to demonstrate, that the mob
           which had assembled at the place of occurrence, was acting in an
    H
               BRIJ LAL v. STATE OF RAJASTHAN                                    185
                  [JAGDISH SINGH KHEHAR, J.]

intimidating manner, resulti1Jg in the accused-appellant- Brij Lal and the           A
co-accused - Kashi Ram, retreating away from the house of Mohan·
Ram - PW-I towards the house of Sultan Bhat. It is therefore apparent,
that the gunshots fired by the appellant-Brij Lal and the co-accused -
Kashi Ram, were in their self-defence, and nothing more. Lastly, it was
the contention of learned counsel for the appellant, that Mohan Lal -
                                                                                     B
PW-15, in his deposition, clearly and unequivocally acknowledged, that
at the time of occurrence when the appellant and the co-accused fired
the shots, he was at a distance of20 feet from the appellant-Brij Lal. It
was the contention of learned counsel, that if the prosecution story is to
be believed, the appellant should have fired at Mohan Lal- PW-15, and
not at the persons gathered at the place of occurrence, as alleged by the            c
prosecution.
       9. During the course of hearing, learned counsel for the rival
parties, in order to project their respective claims, relied on the statements
of only two witnesses, i.e., Mohan Ram - PW-I and Mohan Lal - PW-
15. We are of the view, that in our detennination of the claims, projected           D
on either side, it is imperative to closely examine the testimony of these
two witnesses. We shall endeavour to do so, hereunder:
       I 0. Mohan Ram - PW- I :
(i) In his opening statement, Mohan Ram acknowledged, that he knew
the accused-appellant- Brij Lal and Mohan Lal - PW-15, from before.                  E
He affirmed, that just like them, he too was employed in the Irrigati'on
Department of the State Government. While Brij Lal and Mohan Lal
were employed in the department .as Gauge Readers, he himself was                r



working as a Beldar. All of them were posted at the Head ofSuleman.
He stated, that Mohan Lal and Brij Lal were allotted government quarters             F
close to one another, at Suleman-ki-Head. The fact, that they were
quarreling among themselves for some time prior to the incident, was
also affinned. It was pointed out, that while Mohan Lal was living in his
government quarter along with his family, Brij Lal was residing by himself
in his separate quarter. He affirmed, that the accused-appellant - Brij
Lal used to drink liquor at night, and create a racket "every time",                 G
thereafter. He confinned, that co-accused - Kashi Ram was Brijlal's
drinking partner, and that, Kashi Ram also used to associate along with
Brij Lal, in the brawl. He testified, that Mohan Lal - PW-15, used to
object to their behaviour, and therefore, the accused-appellant- Brij Lal
and the co-accused- Kashi Ram, were inimical to Mohan Lal- PW-15.                    H
186             SUPREME COURT REPORTS                           [2016] 7 S.C.R.



A     He confirmed, that Mohan Lal - PW-15 had complained to him and
      others about their behaviour on several occasions, and that, he had also
      spoken to the accused-appellant - Brij Lal, to persuade him to desist
      from such activities. He pointed out, that Brij Lal was adamant, and had
      refused to stop. He also stated, that Mohan Lal - PW-15 had taken him
      to make a representation against Brij Lal, to the Overseer of the Irrigation
8
      Department. He (Mohan Lal-PW-15) had given up living in his allotted
      quarter, and had moved to his (Mohan Ram-PW-1 's) house along with
      his family, as his tenants. He confirmed, that the said shifting had taken
      place about fifteen days prior to the occurrence.
      (ii) With reference to the occurrence, it was stated, that it had taken
c     place between 8.30 p.m. and 9 p.m. He testified, that he was sitting in
      front of his house on a cot, and that, Mohan Lal - PW-15, and his wife
      and children, were inside the house. He deposed, that the accused-
      appellant - Brij Lal and the co-accused - Kashi Ram, had come to his
      house with pistols in their hands. The accused-appellant - Brij Lal, it
D     was pointed out, asked him to call Mohan Lal - PW-15 outside, as they
      had come to kill him. He stated, that he pleaded with the accused-
      appellant, as also, the co-accused, not to do any such thing, at his
      residence.
      (iii) He confirmed, that he had seen Mohan Lal - PW- I 5 scale the wall
E     of his house, and cross over to the house of his neighbour Badri Ram,
      and then proceeded to the flour mill ofMilkha Singh. He stated, that he
      had shouted out for help, whereafter, his neighbours and co-villagers,
      hearing his clamour, had reached the place of occurrence. He deposed,
      that all the persons gathered at the place of occurrence, had requested
      the accused-appellant - Brij Lal, and the co-accused - Kashi Ram, to
F     leave the place, but Brij Lal and Kashi Ram were adamant in their resolve.
      They had responded by stating, that they would not go anywhere, as
      they had come to kill Mohan Lal - PW-I 5. He testified, that at that
      juncture the accused-appellant - Brij Lal, and the co-accused - Kashi
      Ram, moved away from his house and stood in front of the house of
G     Sultan Bhat, but still continued to hurl abuses. He pointed out, that all the
      neighbours and co-villagers were at a distance of about 20 feet from
      Brij Lal and Kashi Ram, and were persuading them to stop hurling abuses.
      But, they were insistent. Mohan Ram - PW- I further deposed, that co-
      accused - Kashi Ram, at that juncture, exhorted Brij Lal to shoot at the
      crowd, as everyone was siding with Mohan Lal-PW-15. He deposed,
H
              BRIJ LAL v. STATE OF RAJASTHAN                                   187
                 [JAGDISH SINGH KHEHAR, J .]

that Brij Lal, on being so implored, fired at the gathering. He affirmed,      A
that Om Prakash and Sultan Bhat received firearm injuries. It was his
assertion, that in the meanwhile, the co-accused - Kashi Ram also fired
from his gun, which hit Munni Devi, Labh Singh Mistry and Sheria. He
deposed, that Munni Devi and Om Prakash died at the spot, whereas
Sultan Bhat became unconscious.                       ·
                                                                               B
(iv) He also. confirmed, that he had lodged a report of the incident, at
Police Station Chunawar, around mid-night. In his cross-examination
Mohan Ram - PW-1 asserted, that the persons, who had gathered at
the place of occurrence, comprised of men, women and children. He
denied, that those persons who had gathered there, intended to apprehend
the accused-appellant - Brij Lal or the co-accused - Kashi Ram. He
                                                                               c
confirmed, that none amongst the crowd, was armed with any lathis or
sticks. He denied the suggestion, that Brij Lal and Kashi Ram were
attacked by the villagers, with lathis. He deposed, that neither Brij Lal
nor Kashi Ram had received any injuries during the occurrence. He also
denied the suggestion, that the persons gathered at the place of               D
occurrence, had chased the accused-appellant, and the co-accused. He
also denied the suggestion, that Brij Lal and Kashi Ram had come to the
general merchant shop to buy "biris" (traditional cigarettes), and had
never come to his residence, to beat or harm Mohan Lal - PW-15.
(v) The above deposition of Mohan Ram - PW-I, fully affirmed the                E
prosecution version of the occurrence.
       II.Mohan Lal-PW-15:
(i) Mohan Lal deposed, that he was employed in the Irrigation Department,
of the Government of Rajasthan, and was posted at Head of Suleman,
as Gauge Reader. He confirmed, that he was living in a government               F
quarter allotted to him, along with his wife and three children, at Suleman-
ki-Head. He acknowledged, that the government quarter of the accused-
appellant - Brij Lal, was nearby his own quarter. He asserted, that the
accused-appellant- Brij Lal, used to abuse him after drinking liquor, and
that, Kashi Ram and his brother-in-law, used.to sometimes accompany             G
the accused-appellant- Brij Lal. He stated, that he had asked the accused
to desist from using such language, because he was a family man. He
deposed, that he had called a "panchayat" (council), to resolve the issue
between himself and the accused-appellant- Brij Lal. The "panchayat"
was attended by co-employees of the Irrigation Department. He
                                                                               H
188            SUPREME COURT REPORTS                           [20 l 6] 7 S.C.R.


A     confirmed, that Brij Lal, on being called, had attended the panchayat.
      He deposed, that even at the panchayat, the accused-appellant - Brij
      Lal had reiterated, that he would do as he wished, and they (the members
      of the panchayat) may do what they could. He also deposed, that after
      panchayat, he had given an application to the Overseer (Exhibit P-12) of
      his department, complaining a~out the conduct of the accused-appellant-
B
      Brij Lal. He stated that despite the complaint, the behaviour of accused-
      appellant- Brij Lal did not improve. He urged, that to avoid the appellant,
      he had surrendered the government accommodation allotted to him at
      Suleman-ki-Head and had moved to a rented accommodation, in the
      house of Mohan Ram - PW-!. He deposed, that the occurrence had
c     taken place within I 0/15 days of his moving to the house of Mohan
      Ram - PW-I. The occurrence is stated to have taken place between 8
      p.m. ai1d 9 p.m .. He asserted, that Mohan Ram - PW-I, was sitting
      outside the gate of his house, whilst he himself, his wife and children, --
      were in the house. He deposed, that the accused-appellant - Brij Lal
      and the co-accused - Kashi Ram were calling him outside the house.
D
      He confirmed, that they were holding pistols in their hands. On such
      exhortation, Mohan Ram - PW- I had told the accused-appellant and
      the co-accused, that he would not allow them to kill Mohan Lal- PW-15
      at his residence, but they did not listen to him, and continued to hurl filthy
      abuses.
E     (ii) Mohan Lal asserted, that he jumped over the wall of the house of
      Mohan Ram - PW- I, and from the side of the house of Badri Ram, he
      entered the flour mill ofMilkha Singh. He asserted, that the neighbours
      and co-villagers hearing the shouts of Mohan Ram - PW- I, ran to the
      place of occurrence. At that juncture, the accused-appellant- Brij' Lal
F     and the co-accused - Kashi Ram, had moved towards the house of
      Sultan Bhat. He asserted, that the crowd comprised of men, women and
      children. He also deposed, that the villagers requested Brij Lal and Kashi
      Ram to go away, but they were bent on carrying out their objective. He
      stated, that Brij Lal and Kashi Ram fired shots from their pistols, and the
      shots fired by the accused-appellant - Brij Lal hit Om Prakash and
G     Sultan Bhat, whereas, the shots fired by the co-accused - Kashi Ram
      hit Muni Devi, Labh Singh and Sheria Ram. He confirmed, that Munni
      Devi and Om Prakash died at the spot. He also stated, that the condition
      of Sultan became serious, and therefore, the villagers had taken him to
      hospital. He asserted, that the accused-appellant.:.. Brij Lal and the co-
H     accused - Kashi Ram, went away from the spot after the incident.
               BRIJ LAL v. STATE OF RAJASTHAN                                   189
                  [JAGDISH SINGH KHEHAR, J.]

(iii) In his cross-examination Mohan Lal- PW-15 stated, that the conduct        A
of accused-appellant- Brij Lal had worsened, about six months prior to
the occurrence. He stated, that his only difference with the accused-
appellant - Brij Lal was, that he used to abuse him. He denied the
suggestion, that the accused-appellant - Brij Lal had ever teased his
wife. He reiterated, that he had lodged a complaint against the accused-
                                                                                B
appellant - Brij Lal, with his senior officers. He stated, that the first
time, accused-appellant - Brij Lal threatened to kill him, was after he
had summoned the "panchayat" (council), to resolve their dispute. Mohan
Lal - PW-15 acknowledged, that he had never made such a complaint
to the police. He also clarified, that the accused-appellant- Brij Lal and
the co-accused - Kashi Ram, had been exhorting Mohan Ram - PW- I,               c
to call him (Mohan Lal - PW- I 5) outside the house. He stated, that
when accused-appellant - Brij Lal and the co-accused - Kashi Ram
were speaking to Mohan Ram - PW-I, they were visible to him from
within the house. He stated, that he became scared, and therefore, ran
away from the house. He deposed, that he had run away, because the
accused-appellant - Brij La) was saying, that they were going to kill
                                                                                D
him. He deposed, that he had run away by jumping into the house of
Badri Ram, and therefrom, went to the flour mill of Milkha Singh. He
testified, that Milkha Singh closed the doors, after he had entered his
mill, when he informed Milkha Singh, thatthe accused had come to kill
him. While in the flour mill of Milkha Singh, Mohan Lal - PW-I 5                 E
confirmed, that he could hear the sound of people coming to the house
of Mohan Rain - PW-I. He also confirmed hearing the shouts of Mohan
Ram - PW- I. He stated, that he became encouraged and lost his fear,
when he heard the voices of the co-villagers, whereupon, he 'himself
(Mohan Lal -PW-15) and Milkha Singh came out of the flour mill. On
coming out, he had seen the accused-appellant - Brij Lal and the co-
                                                                                 F
accused- Kashi Ram standing in front of the house of Sultan Bhat at a
distance of" ... about 30-40-45 Ft. .. ", from the flour 1nilf. ., He stated,
that he was standing near Om Prakash, when Om Prakash was shot.
And that, Sultan, Munni Devi and Sheria Ram were standing about 5
feet away from their side. He confirmed, that he was not hurt by any            G
pellet. He deposed, that the first shot was fired by the accused-appellant-
Brij Lal, and the next shot was fired by the co-accused - Kashi Ram.
He affirmed, that the accused-appellant- Brij Lal had no quarrel/enmity
with the deceased Om Prakash and Munni Devi. He stated, that Om
Prakash, Munni Devi and others had only come to the place of
                                                                                H
190            SUPREME COURT REPORTS                           [2016] 7 S.C.R.


A     occurrence, to save him. In his cross-examination, Mohan Lal - PW-15
      deposed that, while the accused-appellant- Brij Lal and the co-accused -
      Kashi Ram were standing in front of the house of Sultan Bhat, the
      deceased and the injured were standing at a distance of about 20-25
      feet, from the house of Sultan Bhat. The distance between the accused-
      appellant - Brij Lal and the villagers was about 17 to 18 feet, whereas,
B
      the distance between the co-accused - Kashi Ram and Munni Devi
      was about 8 to I 0 feet. He deposed, that it was not possible for anyone
      to catch the accused-appellant - Brij Lal and the co-accused - Kashi
      Ram, because " ... all were empty handed ... ". During his cross-
      examination Mohan Lal - PW-15 deposed, that the crowd comprised of
c     20 to 25 men, I 0 to 15 women and some children, when the firing had
      taken place. He also asserted, that the accused-appellant - Brij Lal,
      asked Mohan Ram - PW- I, to send forward Mohan Lal - PW-15 (i.e.,
      himself), because they needed to kill him. In response to his denial,
      Mohan Lal - PW-I 5 stated, that the accused-appellant- Brij Lal shouted,
      that the accused would kill each one of those who were helping Mohan
D
      Lal - PW-15. Mohan Lal - PW-15 reiterated, that none of the villagers
      was armed with any weapon. The suggestion, that the villagers were
      chasing the accused and the co-accused, was denied. The suggestion,
      that the persons gathered at the place of occurrence had lath is on their
      hands, and that, they had inflicted injuries on accused-appellant- Brij
E     Lal and the co-accused - Kashi Ram with lathis, was also denied.
      (lv) The above deposition of Mohan Lal - PW-15, fully affirmed the
      prosecution version of the occurrence.
            12. We shall now deal with the individual pleas canvassed at the
      hands of learned counsel for the appellant.
F
             13. The first contention advanced at the hands oflearned counsel
      for the appellant was, that the appellant had fired gunshots at the mob of
      villagers only as a matter of self-defence, when the accused-appellant
      and the co-accused, had been attacked. In this behalf, it would be relevant
      to mention, that whilst it is open to an accused to raise a defence in the
G     nature suggested by learned counsel, there is an obvious pitfall where an
      accused chooses to do so, in the sense that by raising such a plea, the
      accused acknowledges the occurrence itself. There is yet another
      predicament which he is liable to encounter, when raising such a defence.
      The same emerges from Section 96 of the Indian Evidence Act, which
H     is extracted below:
              BRIJ LAL v. STATE OF RAJASTHAN                                   191
                 [JAGDISH SINGH KHEHAR, J.]

      "96. Evidence as to application of language which can apply to           A
      one only of several persons.- When the facts are such that the
      language used might have been meant to apply to any one, and
      could not have been meant to apply to more than one, of several
      persons or things, evidence may be given of facts which show
      which of those persons or things it was intended to apply to."
                                                                                B
In this behalf, reference may also be made to the decision in Rizan v.
State of Chhatisgarh, AIR 2003 SC 976, wherein this Court held as
under:
      "13. Then comes plea relating to alleged exercise ofright of private
      defence. Section 96, !PC provides that nothing is an offence which        c
      is done in the exercise of the right of private defence. The Section
      does not define the expression 'right of private defence'. It merely
      indicates that nothing is an offence which is done in the exercise
      of such right. Whether in a particular set of circumstances, a
      person acted in the exercise of the right of private defence is a
      question of fact to be determined on the facts and circumstances          D
      of each case. No test in the abstract for determining such a
      question can be laid down. In determining this question of fact,
      the Court must consider all the surrounding circumstances. It is
      not necessary for the accused to plead in so many words that he
      acted in self-defence. If the circumstances show that the right of        E
      private defence was legitimately exercised, it is open to the Comt
      to consider such a plea. In a given case the Court can consider it
      even ifthe accused has not taken it. If the same is available to be
      considered from the material on record. Under Section 105 of
      the Indian Evidence Act, 1872, the burden of proof is on the
      accused, who sets of the plea of self-defence, and, in the absence        F
      of proof, it is not possible for the Court to presume the truth of the
      plea of self-defence. The Court shall presume the absence of
      such circumstances. It is for the accused to place necessary
      material on record either by himself adducing positive evidence
      or by eliciting necessary facts from the witnesses examined for           G
      the prosecution. An accused taking the plea of the right of private
      defence is not required to call evidence; he can establish his plea
      by reference to circumstances transpiring from the prosecution
      evidence itself. The question in such a case would be a question
      of assessing the true effect of the prosecution evidence, and not a
                                                                                H
192            SUPREME COURT REPORTS                          (2016) 7 S.C.R.



A           question of the accused discharging any burden. Where the right
            of private defence is pleaded, the defence must be a reasonable
            and probable version satisfying the Court that the harm caused by
            the accused was necessary for either warding off the attack or
            for forestalling the further reasonable apprehension from the side
            of the accused. The burden of establishing the plea of self-defence
B
            is on the accused and the burden stands discharged by showing
            preponderance of probabilities in favour of that plea on the basis
            of the material on record. (See Munshi Ram and others v. Delhi
            Administration, AIR 1968 SC 702; State of Gujarat v. Bai Fatima,
            AIR 1975 SC 1478: State ofU.P. v. Mohd. Musheer Khan, AIR
c            I 977 SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR
             1979 SC 577). Sections l 00 to I 01 define the extent of the right
            of private defence of body. If a person has a right to private
            defence of body under Section 97, that right extends under
            Section I 00 to causing death ifthere is reasonable apprehension
            that death or grievous hurt would be the consequence of the
D
            assault. The oft quoted observation of this Court in Salim Zia
            v. State ofU.P. (AIR 1979 SC 391), runs as follows:
            "It is true that the burden on an accused person to establish the
            plea of self-defence is not as onerous as the one which 1ies on the
            prosecution and that, while the prosecution is required to prove its
E           case beyond reasonable doubt, the accused need not establish the
            plea to the hilt and may discharge his onus by establishing a mere
            preponderance of probabilities either by laying basis for that plea
            in the cross-examination of the prosecution witnesses or by
            adducing defence evidence."
F           The accused need not prove the existence of the right of private
            defence beyond reasonable doubt. It is enough for him to show as
            in a civil case that the preponderance of probabilities is in favour
            of his plea."
                                                           (emphasis supplied)
G
             14. The question that arises for consideration in the instant case
      is, whether there is evidence on the record of this case, to substantiate
      the plea of self-defence? Learned counsel for the appellant, answered
      in the affirmative. The basis of the aforesaid answer is, the injuries
      suffered by the appellant which, according to the appellant, were caused
H     by the mob when the appellant was attacked. It was submitted, that the
               BRIJ LAL v. STATE OF RAJASTHAN                                  193
                  [JAGDJSH SINGH KHEHAR, J.]

gathering of neighbours and villagers, at the place of occurrence had          A
attacked them, resulting in their being pushed back to the house of Sultan
Bhat. It was submitted, that it was only in retaliation of the above attack,
resulting in the injuries suffered by the accused, that the accused-
appellant - Brij Lal, as also, the co-accused - Kashi Ram, had fired
gunshots at the crowd, which was out and out to lynch them.
                                                                               8
        15. Having given our thoughtful consideration to the submissions
advanced, at the hands of learned counsel for the appellant, we are of
the view, that there is overwhelming evidence produced by the
prosecution, affirming that the crowd which had gathered at the place of
occurrence, consequent upon the shouting of Mohan Ram - PW-1, was
unarmed. There is also evidence on the record of the case to authenticate,     c
that all the villagers were only persuading the accused-appellant- Brij
Lal and his co-accused - Kashi Ram, not to insist on carrying out their
threat, to murder Mohan Lal- PW-15. The testimony of the prosecution
witnesses also demonstrates, that there was substantial distance betwi;en
the villagers, and the place at which the accused were standing in the         D
opposite of the house of Sultan Bhat. Not only Mohan Ram - PW-1, but
also Mohan Lal - PW-15, expressly deposed that none of the neighbours
and co-villagers, was armed. Moreover, the reiteration by the witnesses,
that the crowd comprised of men, women and children, by itself is
sufficient, to infer that the neighbours and co-villagers were not aiming
at causing any harm or injury to the accused-appellant or the co-accused.      E
It cannot be overlooked, that one of the deceased - Mst. Munni Devi
was a woman, and one of the injured- Sheria was a child of 5 years.
On taking into consideration the entirety of the facts and circumstances
of the case, especially the absence of any material evidence produced
by the appellant (to demonstrate that gunshots fired by the accused and         F
the co-accused were in self-defence), the instant contention cannot be
accepted.
       16. At this juncture, it is also necessary for us, to refer to two
judgments relied upon by learned counsel for the appellant. Reliance
was first placed, on Bhagwan Swaroop v. State of Madhya Pradesh,               G
( 1992) 2 sec 406, wherefrom our attention was invited to the following
observations:
      ''9. We do not agree with the courts below. It is established on the
      record that Ramswaroop was being given lathi blows by the
      complainant party and it was at that time that gun-shot was fired        H
194           SUPREME COURT REPORTS                             [2016] 7 S.C.R.


A          by Bhagwan Swaroop to save his father from fo11her blows. A
           lathi is capable ofcausing a simple as well as a fatal injury. Whether
           in fact the injuries actually caused were simple or grievous is of
           no consequence. It is the scenario of a father being given lathi
           blows which has to be kept in mind and we are. of the view that in
           such a situation a son could reasonably apprehend danger to the
B
           life of his father and his firing a gun-shot at that point of time in
           defence of his father is justified. We, therefore, set aside the finding
           of the courts below on this point and hold that Bhagwan Swaroop
           fired the gun-shot to defend the person of his father."
                                                            (emphasis supplied)
c
      Reliance was also placed on Buta Singh v. State of Punjab ( 1991) 2
      sec 612, wherefrom, learned counsel placed emphasis on the following
      observations:
            "8. From the above state of evidence, it appears that the defence
D           version regarding the incident is a probable one and is supported
            by the find of blood from near the tubewell which is adjacent to
            the 'dera' of the appellant. When two versions are before the
            court, the version which is supported by objective evidence cannot
            be brushed aside lightly unless it has been properly explained. As
            stated earlier, the prosecution has not explained how blood was
E           found from near the tubewell and no blood was found from the
            spot where according to them the incident occurred. In addition
            to this, the factum regarding the delay in lodging of the First
            Information Report and the suspicion that it was delayed with a
            view to concocting the prosecution case and fu1 thr:r the delay in
F           forwarding the special report to the Magistrate as well as the
            case papers to the hospital shows that the investigation was not
            above board. In these circumstances, we think that the approach
            adopted by the courts below cannot be justified.
            9. Mr. Behl, learned Counsel for the State, however, vehemently
G           argued that the appellant had exceeded his right of private defence.
            We do not think so. Both the appellant and his wife were attacked.
            They had sustained injuries. In the course of assault on them they
            caused injuries to the deceased and the prosecution witnesses. I~
            is true that the High Court has come to the conclusion that all the
            injuries caused to the deceased were caused by the appellant
H           Buta Singh. However, that is not the prosecution case. Besides,
              BRIJ LAL v. STATE OF RAJASTHAN                                   195
                 [JAGDISH SINGH KHEHAR, J.]

      even if it were so, having regard to the nature of the incident, it is   A
      difficult to say that he exceeded the right of private defence for
      the obvious reason that he could not have weighed in golden scales
      in the heat of the moment the number ofinjuries required to disarm
      his assailants who were armed with lethal weapons. We are,
      therefore, of the opinion thatthe submission of the learned Counsel
                                                                               B
      for the State cannot be accepted in the facts and circumstances
      of this case."
                                                      (emphasis supplied)
        17. Having perused the judgments relied upon by learned counsel
for the appellant, and keeping in mind the facts and circumstances of the      c
case, we are of the view, that.no benefit can be derived by the appellant
on the legal position expressed by this Court, with reference to the plea
of self-defence. Herein, there is no evidence to demonstrate, that the
accused-appellant - Brij Lal and the co-accused - Kashi Ram were
actually attacked, and it was as a matter of self-defence that they fired
at the crowd, with their pistols. We have already examined the relevant        D
evidence, on the instant aspect of the matter above. We therefore find
no merit in the first contention, advanced by learned counsel for the
appellant.
       18. The second contention advanced at the hands oflearned counsel
for the appellant was, that the entire prosecution version discloses, that E
the alleged intention of the accused-appellant- Brij Lal was to murder
Mohan Lal - PW-15. It was submitted, that there was no occasion for
the appellant to cause fatal injuries to three unknown persor)s, by firing
shots at them. Even though, the second contention advanced by learned
counsel seems to be interesting, yet we find no merit there.in. The reason F
why the neighbours and the co-villagers had gathered at the place of
occurrence was, to protect Mohan Lal - PW-15, by dissuading the
accused from insisting on to carry out their objectiy~, Consequent upon
their being angered by the villagers, they retaliated by firing ·
indiscriminately at the gathering. Since it was not disputed by the accused-
appellant- Brij Lal, that three fatal (besides other) injuries, were caused G
by the accused-appellant and his co-accused, the onus lies on the appellant
to demonstrate the reason and the justification for their action. The
evidence produced by the prosecution demonstrates, that the accused
had fired gunshots indiscriminately, on being angered by the gathering,
which was trying to persuade them from carrying out their singular H
196            SUPREME COURT REPORTS                           [2016] 7 S.C.R.



A     objective-to cause harm to the person of Mohan Lal-PW-15. Having
      accepted, that they had actually fired at the neighbours and the villagers,
      who had gathered at the place of occurrence, it does not lie in their
      mouth to raise such a plea. For the aforesaid reasons, we find no merit
      even in the instant contention.
B            19. The third contention advanced by learned counsel for the
      appellant was, that the recovery of the weapon, namely, the gun, with
      which the accused-appellant - Brij Lal had shot at the crowd, was not
      proved to have been recovered from the appellant. It was the contention
      of the learned counsel, that one of the recovery witnesses had deposed,
      that the gun recovered at the instance of the accused, was found wrapped
c     when it was dug out. The other witness to the recovery had stated
      otherwise. First and foremost, as noticed hereinabove, such a plea could
      have been raised only ifthe appellant had been in denial, and had adopted
      the stance, that he had not fired at the crowd at the time of occurrence.
      Since that is not his plea, the instant submission is wholly misconceived.
D     Secondly, the factum of recovery has been substantiated by the
      prosecution through the statements of Mohan Ram - PW-I and Mohan
      Lal - PW-15. Even the signatures of the accused-appellant - Brij Lal
      were obtained on the "mazhar" prepared at the time of recovery. In
      such view of the matter, whether or .not the recovered gun was found
      without any covering, or in a wrapped condition, when the same was
E     dug out, at the instance of the accused-appellant - Brij Lal, makes no
      difference, whatsoever. For the reasons recorded above, we find no
      merit in the instant contention.
             20. The fourth contention advanced by learned counsel for the
      appellant was, that the co-accused - Kashi Ram, who w~s separately
F     tried, was acquitted. In this behalf, the projection of learned counsel
      was, that the very same witnesses, who were relied upon by the
      prosecution in the separate trial of the appellant, had deposed during the
      course of the trial conducted against the co-accused - Kashi Ram, and
      as such, the acquittal ofKashi Ram and the conviction of the accused-
G     appellant- Brij Lal, made no sense whatsoever. It would be relevant to
      mention, that the most vital prosecution witness, in the case on hand,
      was Mohan Lal - PW-15. All the allegations focus around Mohan Lal-
      PW-15. The entire prosecution story revolved around the fact, that th<>
      accused-appellant- Brij Lal and the co-accused - Kashi Ram were out
      and out to harm Mohan Lal- PW-15, on account of their previous discord.
H
               BRIJ LAL v. STATE OF RAJASTHAN                                   197
                  [JAGDISH SINGH KHEHAR, J .]

The witness Mohan Lal, who appeared as PW-15, before the trial Court,           A
in the matter out of which the instant appeal arises, was fully described
as, son of Balbir Chand, caste Meghwal, aged 38 years, resident of
Village Ghuman, Tehsil Nawanshahr, Police Station Banga, District
Jalandhar. Whereas, Mohan Lal who appeared as PW-16 in the trial of
the co-accused - Kashi Ram, was described as, son of Lekhram Bhat
                                                                                B
(in the judgment dated 18.3 .1994 rendered by the Additional Sessions
Judge No.2, Sri Ganganagar, in Sessions Trial No.26of1993), wherein
Kashi Ram was the accused. In the above judgment, most of the
prosecution witnesses had resiled, and did not identify the co-accused-
Kashi Ram, as the person involved in the occurrence. The position in
the present case is just the reverse. All the relevant prosecution witnesses,   c
duly identified the accused-appellant- Brij Lal. It is therefore not possible
for us to accept, that the accused-appellant - Brij Lal deserves to be
acquitted, because of the acquittal of Kashi Ram in the separate trial
conducted against him. The instant contention is therefore, accordingly,
declined.
                                                                            D
       21. The fifth contention advanced at the hands oflearned counsel
for the ·appellant was, that as a consequence of the aggressive attitude
of the neighbours and the co-villagers, who had gathered at the place of
occurrence, the accused-appellant- Brij Lal and the co-accused- Kashi
Ram, were pushed back to a distance of about 200 feet from the house
of Mohan Ram - PW- I. It was submitted, that the above factual position E
itself was sufficient, to demonstrate that the attitude of the people, who
had gathered at the place of occurrence, was intimidatory in nature.
And that, firing by the accused-appellant- Brij Lal and the co-accused
- Kashi Ram, was merely a matter of self-defence. We have already
expressed our view with reference to the .issue of self-defence raised      F
on behalf ofthe appellant, in substantial detail hereinabove. The aforesaid
submission is sought to be projected again, by adding one further aspect
to the factual narration, namely, the fact that when the gunshots were
fired by Brij Lal and Kashi Ram, they were at a distance of more than
200 feet from the residence of Mohan Ram - PW-1. We find hardly
any justification in the submission projected by learned counsel for the · G
appellant, in a different perspective. The prosecution has clearly
demonstrated through the testimony recorded on oath, that none of the
persons gathered at the place of occurrence was armed in any manner.
It is also apparent, that the crowd gathered at the place of occurrence
was comprised of men, women and children. The fact, that there was a H
198            SUPREME COURT REPORTS                            [2016] 7 S.C.R.



A     distance of about I 7 to 18 feet between the accused-appel !ant- Brij Lal
      and the villagers, shows that there was no real threat to him when he
      opened firing at.the unarmed gathering including women and children.
      It was only because of their desire to retaliate against the crowd,
      consequent upon the crowd having gathered to protect Mohan Lal -
      PW- IS, cannot be a satisfactory reason for the ·appellant to fire gunshots
B
      indiscriminately. It is therefore, not possible for us to accept even the
      fifth contention advanced by learned counsel for the appellant.
             22. The last contention advanced by learned counsel for the
      appellant was, that Mohan Lal - PW-15 was also a part of the crowd,
      which the .accused~appellant - Brij Lal and the co-accused - Kashi
c     Ram were facing, and as such, he ought to have fired at him, rather than
      at the other members of the crowd. The instant submission is wholly
      misconceived and does not arise at all. The accused-appellant did not
      even make the above suggestion to the prosecution witnesses, when
      they were being cross-examined on his behalf. Moreover, the actual
D     suggestion given was, that the accused had come to a general merchant
      shop to buy "biris" (traditional cigarettes), and that, they never come to
      the place of occurrence, or that, they had any intention to harm Mohan
      Lal - PW-15. In view of the conclusions recorded by us in response to
      the first, second and fifth contentions (advanced by learned counsel for
      the appellant), we find no merit in the instant contention, and the same is
E     also hereby rejected.
             23. To be fair to learned counsel for the appellant, we must also
      refer to the judgment in Sunil Kumar Sambhudayal Gupta v. State of
      Maharashtra, (2010) 13 SCC 657, wherefrom, learned counsel placed
      emphatic reliance on the observations extracted herein below:
F
             "38. It is a well-established principle oflaw. consistently reiterated
             and followed by this Court that while dealing with a judgment of
             acquittal. an appellate court must consider the entire evidence on
             record, so as to arrive at a finding as to whether the views of the
             trial court were perverse or otherwise unsustainable. Even though
             the appellate court is entitled to consider, whether in arriving at a
             finding of fact, the trial court had placed the burden of proof
             incorrectly or failed to take into consideration any admissible
             evidence and/or had taken into consideration evidence brought on
             record contrary to law; the appellate court should not ordinarily
H            set aside a judgment of acquittal in a case where two views are
              BRIJ LAL v. STAfE OF RAJASTHAN                                   199
                 [JAGDISH SINGH KHEHAR, J.]

      possible, though the view of the appellate court may be the more         A
      probable one. The trial court which has the benefit of watching
      the demeanor of the witnesses is the best judge of the credibility
      of the witnesses.
      39. Every accused is presumed to be innocent unless his guilt is
      proved. The presumption of innocence is a h~man right. Subject           B
      to the statutory exceptions, the said principle forms the basis of
      criminal jurisprudence in India. The nature of the offence, its
      seriousness and gravity has to be taken into consideration. The
      appellate court should bear in mind the presumption of innocence
      of the accused, and further, that the trial court's acquittal bolsters
      the presumption of his innocence. Interference with the decision
                                                                               c
      of the trial court in a casual or cavalier manner where the other
      view is possible should be avoided, Lin less there are good reasons
      for such interference.
      40. In exceptional· cases where there are compelling
      circumstances. ahd the judgment under appeal is found to be              D
      perverse, the appellate court can interfere with the order of
      acquittal. The findings of fact recorded by a court can be held to
      be perverse ifthe findings have been arrived at by ignoring or
      excluding relevant material or by taking into consideration
      irrelevant/inadmissible material. A finding may also be said to be        E
      perverse if it is "against the weight of evidence", or ifthe finding
      so outrageously defies logic as to suffer from the vice of
      irrationality. (See Balak Ram v. State of U.P., ( 1975) 3 SCC 219,
      Shailendra Pratap v. State ofU.P., (2003) 1 SCC 761, Budh Singh
      v. State ofU.P., (2006) 9 SCC 731, S. Rama Krishna v. S. Rami
      Reddy, (2008) 5 SCC 535, Arulvelu v. State, (2009) 10 SCC 206,            F
      Ram Singh v. State of H.P., (2010) 2 SCC 445 and Babu v. State
      of Kerala, (2010) 9 SCC 189)."
                                                      (emphasis supplied)
       24. We have given our thoughtful consideration to the parameters        G
laid down in the above judgment. We are however of the considered
view, that the High Court relied upon cogent evidence, to set aside the
order of acquittal passed by the Additional Sessions Judge. We are also
satisfied in recording, that the trial Court had overlooked vital evidence
recorded on behalf of the prosecution, specially during the cross-
examination of the prosecution witnesses, whereupon, the position of            H
200             SUPREME COURT REPORTS                          [1016] 7 S.C.R.


A     there being any second way of viewing the facts, was absolutely out of
      question. We are of the considered view, that the statements of the two
      prosecution witnesses, namely, Mohan Ram - PW- I and Mohan Lal -
      PW-IS, along with the testimony of the other witnesses, would clearly
      and. unequivocally lead to the inference, that the accused-appellant -
      Brij Lal was guilty of having committed the offence under Section 302
B
      of the IPC, insofar as his having caused the .murders of Om Prakash
      and Sultan Bhat are concerned. There is absolutely no question of
      extending the benefit of any doul;>t to the accused-appellant- Brij Lal, in
      the present case.
            25. For the reasons recorded above, we find no merit in this appeal
c     and the same is, accordingly, dismissed.
      Devika Gujral                                             Appeal dismissed.