STATE OF RAJASTHANversusMEHRAM & ORS.

234                       [2020]
               SUPREME COURT     5 S.C.R. 234
                              REPORTS                      [2020] 5 S.C.R.


A                          STATE OF RAJASTHAN
                                       v.
                              MEHRAM & ORS.
                      (Criminal Appeal No. 1894 of 2010)
B                               MAY 06, 2020
       [A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
             Penal Code, 1860 – Conversion of conviction from s.302 IPC
      to s.326 IPC – The complainant’s case that they used an old way
      passing through the fields of accused persons to go to their field
C
      – There was a dispute between the parties for using the fields as
      a passage – On the day of incident, the accused persons armed
      with ‘Kassies’ and lathies come out from the back of the bushes
      and surrounded the complainant when he was passing through
      fields – The accused tried to strike the complainant, however, the
D     victim and other persons arrived from their fields – Thereafter, the
      accused No. 5/respondent no. 1 struck a ‘kassi’ blow on the head
      of the victim, due which he fell and later on died – There were
      beatings from both sides and after the intervention of other
      villagers, the accused persons ran away – The case was committed
      by the Sessions Court and the accused no. 5/respondent no. 1 came
E
      to be convicted u/ss. 148, 302, 324/149 IPC and sentenced to
      undergo life imprisonment – All the five accused including accused
      no. 5 preferred appeal before the High Court – As regards, accused
      no. 5/respondent no. 1, the High Court converted the conviction
      u/s. 302 IPC into one under s. 326 IPC on the finding that the said
F     accused had exceeded his right of private defence – On appeal,
      held: On perusal of the relevant evidence and the judgments of
      the Trial Court and the High Court, there is no reason to depart
      from the conclusion reached by the Trial Court that there were
      tangible circumstances and evidence to indicate that the accused
      party was the aggressor, who was hiding in the bushes and appeared
G
      only after the complainant party arrived on the spot – The accused
      party armed with lethal weapons assaulted the complainant party
      – The blows inflicted by the concerned accused, in particular
      accused No. 5, here with intention to kill the victim/deceased – The
      High Court proceeded on the erroneous assumption that the
H     accused party were provoked due to the unauthorized entry of the
                                      234
         STATE OF RAJASTHAN v. MEHRAM & ORS.                            235


complainant party on their fields and to defend their possession,       A
they had to resort to right of private defence – In the instant case,
there was no evidence produced to substantiate the plea of exercise
of private defence – The incident in question occurred due to
provocation and spiralled into a free fight – Further, once it is a
case of accused party being the aggressors and they commenced
                                                                        B
assault on the complainant party and the accused No. 5/respondent
No. 1 having been found to have assaulted victim/deceased with
intention to kill him the question of invoking the right of private
defence does not arise – Insofar the conviction of the accused
no.5/respondent no.1 is concerned, the sequence of events would
indicate that provocation was not invited by the accused party, but     C
was obviously at the instance of the complainant party, who entered
the fields unauthorisedly despite the objection taken by the
complainant party in that regard on the same day earlier – The
death of the victim was caused by the one fatal blow on the head,
which was with the intention of causing his death or causing such
                                                                        D
bodily injury as is likely to cause death, therefore, the case would
be covered by s. 304-I, IPC – Accordingly, the impugned judgment
of the High Court and that of the Trial Court are modified by
convicting the accused no. 5/respondent no. 1 for offence
punishable u/s. 304-I and s. 148 IPC.
      Disposing of the appeal, the Court                                E

       HELD: 1. After having gone through the relevant evidence
and judgments of the trial Court and the appeal Court (High
Court), this Court has no reason to depart from the conclusion
reached by the trial Court that there were tangible
circumstances and evidence to indicate that the accused party           F
was the aggressor, who was hiding in the bushes and appeared
only after the complainant party arrived on the spot. The accused
party had assembled at the spot with lethal weapon(s) and all
the accused were waiting for the complainant party to arrive at
the spot and started assaulting the complainant party. The blows        G
inflicted by the concerned accused, in particular accused No. 5,
were with an intention to kill victim (deceased). The death of
victim was caused due to the blow inflicted by accused No. 5
and was a homicidal death. There is no reason to depart from
the said findings recorded by the trial Court and the same
                                                                        H
236           SUPREME COURT REPORTS                      [2020] 5 S.C.R.


A     remained undisturbed by the High Court. The High Court by
      its cryptic judgment, proceeded on the erroneous assumption
      that the accused party had been provoked due to the
      unauthorised entry of the complainant party on their fields and
      to defend their possession, they had to resort to right of private
      defence. While doing so, the accused party, in particular, accused
B
      No. 5, exceeded his right of private defence. There was no
      common object because the incident in question occurred due
      to provocation and spiralled into a free fight, causing injuries to
      both sides. The fallacy in the reasoning of the High Court is
      palpable from the evidence of prosecution witnesses, which has
C     been elaborately analysed and rightly accepted as truthful by the
      trial Court, substantiating the allegations against the accused
      party of being the aggressors. Once it is a case of accused party
      being the aggressors and they commenced assault on the
      complainant party and further, the accused No. 5 having been
      found to have assaulted victim (deceased) with intention to kill
D
      him, the question of invoking the right of private defence does
      not arise. In fact, no defence evidence was produced to
      substantiate the plea of exercise of private defence. The two
      theories (of being aggressors as opposed to exercise of right of
      private defence) are antithesis to each other. [Para 9] [249-E-
E     H; 250-A-D]
             2. From the description of injuries, it is amply clear that
      these injuries are superficial and as rightly found by the trial
      Court, will have no bearing on the prosecution case, even if the
      same remain unexplained. The fact that some of the accused had
F     received grievous injuries, does not belie the prosecution case
      that the accused were the aggressors. There was no reason for
      the accused to remain in hiding position equipped with lethal
      weapon(s), waiting for the arrival of the complainant party and
      on their arrival, to immediately commence attack and cause fatal
      injuries to the complainant party. Such being the factual matrix,
G     it is unfathomable as to how the plea of right of private defence
      could be invoked by the accused. If such a plea is not available,
      the question of answering the plea in favour of the accused that
      it was a case of excessive exercise of right of private defence
      does not arise at all. The basis of the High Court judgment being
H     flawed in this regard, the conclusion recorded by it cannot stand
         STATE OF RAJASTHAN v. MEHRAM & ORS.                            237


the test of judicial scrutiny. For the same reason, the question        A
of converting the offence under Section 302 to one under Section
326 cannot be countenanced, both on facts and in law. [Para 11]
[251-E-H; 252-A-B]
       3. Indeed, the trial Court’s finding of guilt recorded against
accused No. 5, is unexceptionable. However, on the nature of            B
offence, the trial Court considered the plea of the accused only
in reference to offence falling under Section 304 Part II of the
IPC. The trial Court rejected that argument and this Court must
uphold that conclusion, because the finding of fact is that the act
was done by the accused with the knowledge that it is likely to
cause death, and with intention to kill victim (deceased). But          C
before final opinion is expressed, it is necessary to examine as
to whether the case in hand would be covered under the
exceptions predicated in Section 300, IPC, so as to apply Section
304, IPC – be it Part I or Part II thereof. The facts of the present
case would indicate that the accused, in particular accused No.         D
5, at the relevant time, was deprived of the power of self-control
by grave and sudden provocation due to repeated unauthorised
entry on the fields belonging to accused party. Further,the
solitary fatal blow on the vital part of the head by accused No. 5
caused the death of victim (deceased). The provocation was not
invited by the accused party, but was obviously at the instance         E
of the complainant party,who entered the fields unauthorizedly
despite the objection taken by the complainant party in that
regard on the same day earlier. However, as the death of victim
(deceased) was caused by the act of accused No. 5 giving one
fatal blow on the head, which was with the intention of causing         F
his death or causing such bodily injury as is likely to cause death,
the case would be covered by Section 304 Part I, IPC. It is
certainly not a case to simply proceed under Section 326 of the
IPC, as held by the High Court. This Court disapproves that
approach of the High Court. Even if the High Court had justly
applied Section 326, IPC, this Court fails to appreciate as to how      G
the High Court could have imposed sentence only for a period
(about five months) undergone considering the nature and
gravity of the offence and the background in which it is
committed by the accused party, in particular, accused No. 5.
[Para 12] [252-A-H]                                                     H
238            SUPREME COURT REPORTS                       [2020] 5 S.C.R.


A           Chandrakant Patil v. State through CBI (1998) 3 SCC
            38 : [1998] 1 SCR 447 ; Sumer Singh v. Surajbhan
            Singh & Ors. (2014) 7 SCC 323 : [2014] 5 SCR
            882 ; State of Rajasthan v. Ramanand (2017) 5 SCC
            695 : [2017] 3 SCR 981 ; Gottipulla Venkatasiva
            Subbrayanam & Ors. v. the State of Andhra Pradesh
B
            & Anr. (1970) 1 SCC 235 : [1970] 3 SCR 423 ; Deo
            Narain v. The State of Uttar Pradesh (1973) 1 SCC
            347 : [1973] 3 SCR 57 ; Subramani & Ors. v. State of
            Tamil Nadu (2002) 7 SCC 210 : [2002] 1 Suppl. SCR
            718 ; State of Uttar Pradesh v. Gajey Singh &
C           Anr. (2009) 11 SCC 414 : [2009] 2 SCR 998 –
            referred to.
                             Case Law Reference
      [1998] 1 SCR 447                   referred to          Para 4
      [2014] 5 SCR 882                   referred to          Para 4
D
      [2017] 3 SCR 981                   referred to          Para 4
      [1970] 3 SCR 423                   referred to          Para 4
      [1973] 3 SCR 57                    referred to          Para 4
      [2002] 1 Suppl. SCR 718           referred to           Para 4
E
      [2009] 2 SCR 998                   referred to          Para 4
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1894 of 2010
            From the Judgment and Order dated 05.11.2007 of the High
F     Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal
      No. 271 of 1982.
              Dr. Manish Singhvi, Sr. Adv., D.K. Devesh, Milind Kumar, Advs.
      for the Appellant.
            Sushil Kumar Jain, Sr. Adv., H.D. Thanvi, Rishi Matoliya (for
G     Sarad Kumar Singhania), Advs. for the Respondents.
            The Judgment of the Court was delivered by
            A. M. KHANWILKAR, J.
            1. This appeal takes exception to the judgment and order dated
H     5.11.2007 passed by the High Court of Judicature for Rajasthan at
              STATE OF RAJASTHAN v. MEHRAM & ORS.                               239
                     [A. M. KHANWILKAR, J.]

Jodhpur1 in D.B. Criminal Appeal No. 271/1982, whereby the conviction           A
of the respondent No. 1/original accused No. 5 (Mehram S/o Mr.
ChhagnaRam)under Section 302 of the Indian Penal Code2 has been
converted into one under Section 326, IPC and the substantive sentence
awarded therefor is reduced only to the period already undergone
(about five months) by the accused No. 5. At the outset, the learned
                                                                                B
counsel for the appellant-State had made it amply clear that the State
was pursuing this appeal only against the accused No. 5 (Mehram
S/o Chhagna Ram)for restoration of his conviction under Section 302,
IPC and to award him sentence of life imprisonment.
       2. Briefly stated, five accused were named in the First
Information Report (FIR) registered on 14.8.1981 at P.S. Nagaur in              C
relation to an incident at village Gowa Khurd. The case set out in the
stated FIR, as noted by the trial Court, reads thus: -
          “2. …
          “On 14.08.1981 at 9:30 p.m. in the evening Complainant injured        D
          Mangilal, lodged an oral report with the Officer Incharge, Police
          Station Nagaur to the effect that he has four fields at Village
          Gowa Khurd, out of which one field is situated about a distance
          of one km. away from the village. Complainant has further stated
          that for going to that field they have to use an old way passing
          through the fields of Heera, Chhagna and Jeevan. However, this        E
          way is not recorded in Government record. In the report,
          Complainant has further stated that last year sons of accused
          Heera obstructed the sons of the complainant party from going
          to their field by that unrecorded way. But upon intervention of
          Anna Kaka, they were pacified. Thereafter, this year after rainy      F
          season, accused Heera and Chhagna closed that way. Therefore,
          they had to cultivate their field having gone through Basni. In
          the report, complainant has further stated that at about dusk when
          he along with his wife were going for removing the weeds to
          another fields and at that time his younger brother Ghewar and
          Sawanta were grazing goats at a distance. At that time quarrel        G
          was taken place between accused Ramnarayan and Ghewar on
          account of way and they went to village. At 5 o’ clock in the
          evening, his wife had also gone to village. Complainant has further
1
    For short, “the High Court”
2
    For short, “IPC”                                                            H
240            SUPREME COURT REPORTS                         [2020] 5 S.C.R.


A           stated that at the time of sunset while he alone was coming
            towards the village from the field. And when he reached the
            village near pond, then accused persons- Mehram and
            Baksharam, having armed with ‘Kassies’ and accused persons-
            Ramnarayan, Heeraram and Ramniwas, having lathies in their
            hands came out from the back of ‘Kai’ (bushes) and surrounded
B
            the Complainant. Accused Baksharam with the intention to kill
            struck ‘Kassi’ blow from the sharpen side on the head of Mangilal,
            but Mangilal managed to prevent it by lifting the hand, due to
            which Mangilal sustained injury over his palm. Accused
            Baksharam tried to inflict another ‘Kassi’ blow to Mangilal,
C           whereupon Bhuraram caught hold the ‘Kassi’. And Mehram,
            Moti and Annaram arrived at the place of occurrence from their
            fields. Thereafter, accused Mehram S/o Chhagana struck a
            ‘Kassi’ blow from sharpen side on the head of Bhura from the
            backside, due to which Bhura fell down, accused Ramniwas
            inflicted a lathi blow over the head of Mehram S/o Annaram.
D
            Thereafter, all the accused persons gave beatings. Then Ratna,
            Moti and Annaram had intervened after reaching on the spot.
            Accused persons having assumed Bhura died ran away.
            Complainant has further stated that accused persons have given
            beatings with the intention of taking revenge on account of way
E           dispute…”
             On the basis of the above complaint, investigation was
      commenced for offences punishable under Sections 147, 148, 149, 323,
      307 and 302, IPC. The case was committed to the Sessions Court by
      the Chief Judicial Magistrate in February, 1982, which was numbered
F     as Sessions Case No. 9/1982. After a full-fledged trial, in which
      fourteen (14)prosecution witnesses came to be examined, the trial Court,
      on extensive analysis of the evidence on record, vide judgment and order
      dated 21.7.1982, running into around 115 loosely typed pages, found the
      named accused guilty of the concerned offences, and passed the
      following order: -
G
                                       “ORDER
               Hence, accused Mehram son of Chhagna is hereby held guilty
            of committing offence under Section 148, 302, 324/149 Indian
            Penal Code.
H
         STATE OF RAJASTHAN v. MEHRAM & ORS.                                241
                [A. M. KHANWILKAR, J.]

         Accused Ramniwas is hereby held guilty of committing               A
      offence under Section 147, 323, 324/149 India Penal Code and
      accused persons- Heera Lal, Ramnarayan under Section 323,
      324/149 Indian Penal Code and accused Baksharam is hereby
      convicted under Section 148, 324 I.P.C.
         Accused persons Heeraram, Ramnarayan, Ramniwas and                 B
      Baksharam are not found guilty of committing offence under
      Section 302 and 302/149 Indian Penal Code.
          Hence, accused Mehram is hereby sentenced to undergo life
      imprisonment and to pay fine of Rs.100/- in default of payment
      of fine to undergo additional three months rigorous imprisonment      C
      under Section 302 Indian Penal Code.
         Accused persons- Mehram and Baksharam each of them is
      hereby sentenced to undergo six months simple imprisonment and
      to pay fine of Rs.100/- in default of payment of fine to undergo
      15 days additional simple imprisonment for committing offence         D
      under Section 148 and accused persons Ramnarayan and
      Ramniwas for committing offence under Section 147 I.P.C.
          Accused Baksharam for committing offence under Section
      324 and accused persons- Ramniwas, Heeraram, Ramnarayan
      and Mehram for committing offence under Section 324/149 I.P.C.        E
      each of them is hereby sentenced to undergo six months and to
      pay fine of Rs.100/- in default to undergo 15 days simple
      imprisonment. Accused Ramniwas is further sentenced to
      undergo three months simple imprisonment under Section 323
      I.P.C. All the sentences shall run concurrently.
                                                                            F
          Accused persons-Heeraram, Ramnarayan, Ramniwas and
      Baksharam shall be entitled to get benefit under Section 428
      I.P.C.
         Clothes and arms (Art.1 to Art.10) shall be destroyed after
      the expiry of period of limitation for appeal. Copy of the judgment
                                                                            G
      be made available to accused persons.”
      As regards theaccused No. 5 (Mehram S/o Chhagna Ram), he
came to be convicted for offences punishable under Sections 148, 302,
324/149, IPC and sentenced to undergo life imprisonment with fine of
Rs.100/- for the offence punishable under Section 302, six months’
                                                                            H
242              SUPREME COURT REPORTS                       [2020] 5 S.C.R.


A     simple imprisonment with fine of Rs.100/- for offence punishable under
      Section 148, IPC and six months’ simple imprisonment with fine of
      Rs.100/- for offence punishable under Section 324/149, IPC.
             3. All the five accused preferred appeal before the High Court
      being D.B. Criminal Appeal No. 271/1982. The appeal filed by Ram
B     Niwas (respondent No. 2/original accused No. 3), Heera Ram
      (respondent No. 3/original accused No. 1), Ram Narayan (respondent
      No. 4/original accused No. 2) and Laxa Ram(respondent No. 5/original
      accused No. 4) came to be partly allowed and their conviction under
      Section 149, IPC was set aside, but under Sections 323, 324, 147 and
      148, IPC, the conviction was maintained. They were sentenced for
C     the period already undergone for the stated offences. As regards
      Mehram S/o Chhagna Ram (respondent No. 1/accused No. 5), the High
      Court converted the conviction under Section 302, IPC into one under
      Section 326, IPCon the finding that the said accused had exceeded his
      right of private defence. Additionally, the High Court confirmed his
D     conviction under Section 148, IPC. Despite the charge of murder and
      intentionally causing death of Bhura Ram (deceased), the High Court
      awarded sentence of period already undergone (around five months)
      by the accused No. 5 and directed him to pay compensation of
      Rs.50,000/- (Rupees fifty thousand only) to the next of kin of the
      deceased –Bhura Ram.
E
             4. As aforesaid, even though the State has filed the present
      appeal against all the five accused persons, at the outset, it was made
      clear by the counsel for the State that the appeal is being pursued only
      against the respondent No. 1/accused No. 5 (Mehram S/o Chhagna
      Ram) in respect of nature of offence and on the point of sentence.The
F     counsel for accused No. 5, however, urged that the said accused had
      a right to challenge the finding of guilt and conviction under Section
      326 and 148, IPC, recorded against him, even though the said accused
      had not preferred a formal appeal against the impugned judgment. To
      make good this submission, reliance is placed on Chandrakant Patil
      vs. State through CBI3, Sumer Singh vs. Surajbhan Singh & Ors.4,
G
      State of Rajasthan vs. Ramanand5 and Section 377(3) of the Code
      of Criminal Procedure, 19736. According to him, the accused No. 5
      3
        (1998) 3 SCC 38
      4
        (2014) 7 SCC 323
      5
        (2017) 5 SCC 695
H     6
        For short, “Cr.P.C.”
           STATE OF RAJASTHAN v. MEHRAM & ORS.                               243
                  [A. M. KHANWILKAR, J.]

was entitled to acquittal, as the prosecution had failed to substantiate     A
the charges framed against him. In any case, in the alternative it is
submitted, that the incident had occurred on the spur of the moment
due to provocation given to the accused No. 5and the said accused in
retaliation and in exercise of his right of private defence, ended up in
causing single injury to the deceased (Bhura Ram) without any intention
                                                                             B
to cause his death. Even for that reason, the accused No. 5 was entitled
to benefit of doubt and it was not a fit case for conviction even under
Section 326/148, IPC. It is urged that the accused No. 5 is a senior
citizen (aged about 70-75 years) and suffering from various old age
diseasesand due toefflux of time, the Court ought not to entertain this
appeal filed by the State. Learned counsel contends that even if it is       C
a case of excessive exercise of right of private defence, the benefit
should be given to the accused. In support of the said contention, the
learned counsel has placed reliance on the decisions of this Court in
Gottipulla Venkatasiva Subbrayanam & Ors. vs. the State of
Andhra Pradesh & Anr. 7, Deo Narain vs. The State of Uttar
                                                                             D
Pradesh8, Subramani & Ors. vs. State of Tamil Nadu9 and State of
Uttar Pradesh vs. Gajey Singh & Anr.10.
       5. We have heard Dr. Manish Singhvi, learned senior counsel
for the appellant and Mr. Sushil Kumar Jain, learned senior counsel for
the respondent.
                                                                             E
       6. The accused No. 5 (Mehram S/o Chhagna Ram) is justified
in contending that it is open to the said accused to challenge the finding
and order of conviction under Section 326/148, IPC recorded against
him in the appeal filed by the State, assailing the impugned judgment
of the High Court. That being the settled legal position, as expounded
in Chandrakant Patil (supra), Sumer Singh(supra) and Ramanand                F
(supra) including Section 377(3) of the Cr.P.C., which predicates that
in the appeal filed against the sentence on the ground of its inadequacy,
the accused may plead for his acquittal or for reduction of the sentence.
Resultantly, we may have to consider the correctness of the finding of
fact recorded by the trial Court and the appeal Court (High Court)           G
against the accused No. 5 (Mehram S/o Chhagna Ram).

7
  (1970) 1 SCC 235 (paragraphs 17 and 18)
8
  (1973) 1 SCC 347 (paragraph 5)
9
  (2002) 7 SCC 210 (paragraphs 19 to 27)
10
   (2009) 11 SCC 414 (paragraph 30)                                          H
244            SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A            7. Reverting to the judgment of the trial Court, it is noticed that
      the trial Court vide judgment and order dated 21.7.1982, extensively
      analysed the evidence of each witness and the stand taken by the rival
      parties. On the basis of that analysis, the trial Court proceeded to hold
      that the prosecution had succeeded in substantiating the allegation that
      the accused party was hiding behind the ‘Kair’bushes and on arrival
B
      of the complainant party at the scene of occurrence, came out of the
      bushes and assaulted the complainant party including Bhura Ram
      (deceased). The trial Court recorded the following finding: -
            “24. …Hence, it is established that place of occurrence was the
            ‘Kair’ bushes land, the height of ‘Kair’ bushes was 5 to 6 ft.
C           and by the depositions of witness Mangilal (PW-11) and spot
            inspection report (Ex. P-21) and accused persons were hiding
            behind the ‘Kair’ bushes. Accordingly, the fact of accused
            persons duly armed with weapons hiding behind the ‘Kair’ bushes
            has also been established and that accused persons were the
D           assailants, otherwise they would not have hidden behind the
            ‘Kair’ bushes.”
             It then proceeded to find that before the incident, some quarrel
      had taken place between accused No. 2 – Ram Narayan, Ghewar and
      Motaram on account of grazing goats, in which Ram Narayan had
E     assaulted Ghewar, who belonged to complainant side. The
      circumstances clearly indicate that the accused persons intended to take
      revenge and due to which they had arrived at the place of occurrence
      from the village armed with lethal weapon(s) for assaulting the
      complainant party at an opportune moment. The trial Court then found
      that the accused persons had not been able to give any explanation for
F     coming together at the place of incident nor about the bringing of lethal
      weapon(s) like “kassi” at the site. The trial Court in that context
      observed thus: -
            “25. ... Fourthly, accused persons have not been able to give
            any explanation of coming all the five accused persons altogether.
G           Nor they have given any explanation of bringing lethal weapon
            like – ‘Kassi’ with them. Therefore, by the fact viz. going of
            accused persons from village, having armed with deadly
            weapons, giving beatings to Ghewarram belonging to complainant
            side by Ramnarayan amongst accused persons prior to the
H           occurrence, it has been fully established that accused persons in
          STATE OF RAJASTHAN v. MEHRAM & ORS.                                 245
                 [A. M. KHANWILKAR, J.]

      order to take revenge, duly armed with lathies and ‘Kassies’ had        A
      arrived at the place of occurrence, therefore, accused persons
      are proved to be the aggressor.
      26. In my opinion, the arguments of learned counsel appearing
      for the accused persons to the effect that by the prosecution
      evidence, revolving lathi by Mangilal is proved and, therefore,         B
      Complainant side was the assailant, does not appear having any
      substance. Firstly, in view of the aforesaid discussion, accused
      persons have been proved to be the aggressor, therefore, first
      revolving lathi by Mangilal after having surrounded, it cannot be
      said that Mangilal was assailants. Secondly, by the depositions
      of prosecution witnesses viz. Ramratan (PW-5), Motiram (PW-             C
      6), Annaram (PW-7), Mehram (PW-8) and Mangilal (PW-11), it
      has been established that Mangilal was revolving lathi while he
      was surrounded and was raising alarm that ‘Maare Marre’.
      Therefore, revolving lathi by the complainant side after assaulting
      was in defence and, therefore, accused persons do not get the           D
      right of private defence.”
       The trial Court then went on to find that the complainant side
and accused persons, both, had sustained injuries in the incident in
question. The trial Court, however, opined that in the present case,
non-explanation of injuries sustained by accused persons by the               E
prosecution had no vital impact on the prosecution case, and observed
thus: –
      “28. … Firstly, in the present case it has been established that
      accused persons were the aggressor. It has also been established
      that accused persons have started the occurrence. Therefore,            F
      prosecution side has given explicit evidence with regard to the
      genesis of the occurrence. The prosecution evidence is
      unambiguous and, therefore, non-submission of explanation of the
      injuries sustained by accused persons, does not have any effect
      on the prosecution case. …”
                                                                              G
      The trial Court unambiguously noted that the injuries sustained
by the accused persons are superficial and minor. After analysing the
medical and ocular evidence, the trial Court found that during the scuffle,
deceased Bhura Ram had caught hold of “kassi” blow inflicted by Laxa
Ram (accused No. 4) and thereafter, Mehram S/o Chhagna Ram
(accused No. 5) inflicted “kassi” blow from the sharpen side on the           H
246            SUPREME COURT REPORTS                        [2020] 5 S.C.R.


A     head of Bhura Ram (deceased) with intention to kill him, which blow
      struck on the vital part of his head. And as per the medical evidence,
      that injury was sufficient to cause death of Bhura Ram. The trial Court
      then proceeded to analyse the evidence on record and noted as
      follows: -
B           “39. Hence, depositions of witness Mangilal (PW-11) gets
            corroboration by the depositions of eyewitnesses- PW-5, 6, 7 and
            8,Injury Reports Ex.P-9, 10 and PW-11 Post mortem report of
            deceased Bhura, Report (Ex.P-13) lodged by Mangilal
            immediately after the incident, spot condition memo (Ex.P-1),
            site-plan of the place of occurrence (Ex.P-14), recovery of blood
C           stained lathi (Article-8) from the possession of accused
            Ramniwas, recovery of clothes of injured and deceased which
            have been found to be stained with human blood and accused
            persons being the aggressor and by giving beatings by accused
            Ramnarayan to Ghewar and Motaram belong to complainant side,
D           prior to the occurrence and by the depositions of PW-1 it is also
            proved that on 14.08.81 in the evening time at village Gowa
            Khurd, accused persons-Heeraram, Ramnarayan, Ramniwas,
            Baksharam and Mehram formed an unlawful assembly and at
            that time accused Baksharam and Mehram were duly armed with
            lethal weapons like ‘Kassies’ and amongst the accused persons,
E           in furtherance to their common object, accused Baksharam
            intentionally inflicted simple injuries with ‘Kassi’ from sharpen
            side on the hand of Mangilal and when Bhura came to rescue,
            then accused Mehram inflicted a ‘Kassi’ blow from sharpen side
            over the head of Bhura. It is also established that when Mehram
F           came to rescue Bhura, then Ramniwas caused injuries with lathi
            over the head and shoulder of Mehram.
            40. Learned Advocate for the accused persons has also contended
            that Bhura was come to rescue, suddenly he sustained this injury,
            therefore, by the act of accused Mehram, it cannot be said that
G           he was having any motive to kill and at the most the case of the
            accused falls within the purview of Section 304 Clause II I.P.C.
            and, therefore, accused shall be acquitted of the charge under
            Section 302 Indian Penal Code.
            41. In my opinion, no substance appears in the contention raised
H           by learned defence counsel, because by the depositions of Dr.
          STATE OF RAJASTHAN v. MEHRAM & ORS.                                247
                 [A. M. KHANWILKAR, J.]

      Ghodawat (PW-9) it is proved that in the ordinary course of nature     A
      injury No.1 on the head of Bhura was sufficient to cause death
      and due to this injury Bhura died. Beneath this injury the complete
      bone was cut in thickness. All the membranes over the brain were
      cut. Accordingly, it is proved that injury No.1 was sufficient to
      cause death in the ordinary course of nature, injury No.1 placed
                                                                             B
      over the vital part of body like head, causing injury with a lethal
      weapon like ‘Kassi’ from the sharpen side, arriving of Bhura to
      rescue from backside, engaging of accused persons in giving
      beatings and causing very deep injuries, by which it is proved
      that accused have forcefully inflicted injuries and falling of Bhura
      immediately after sustaining injuries, by these facts, it is proved    C
      that accused Mehram was having intention to kill Bhura and he
      has caused head injury to Bhura with the intention to kill, due to
      which Bhura died. Therefore, accused Mehram S/o Chhagna
      caused injury to Bhura with the intention to kill. Thus, he has
      committed offence of homicidal death by committing murder of
                                                                             D
      Bhura and, therefore, charge of committing offence under Section
      302 Indian Penal Code has been fully established against accused
      Mehram son of Chhagna.
      42. In my opinion, no substance appears in the argument of
      learned Advocate for the accused persons that the act of accused
      falls within the purview of Section 304 Part II I.P.C. Firstly,        E
      Mehram was already assailant, secondly accused Mehram has
      given beatings with weapon, he was standing there after making
      preparations and, therefore, it cannot be said that killing of Bhura
      by accused Mehram S/o Chhagana was sudden. Rather, it is
      proved that Mehram S/o Chhagna has caused injury to Bhura              F
      with the intention to kill, therefore, his case falls within Section
      302 I.P.C.”
      Indeed, the trial Court went on to hold that the prosecution had
not succeeded in substantiating common object of committing murder
of the person concerned and acquitted the accused of charge under            G
Section 149, IPC.
      8. When the matter travelled to the High Court at the instance
of the accused persons by way of appeal, the Division bench of the
High Court partly allowed the appeal and, if we may say so, by a cryptic
judgment, which reads thus: -                                                H
248      SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A     “…..
             We have heard the learned counsel for the parties and
      have given our thoughtful consideration to the material available
      on record.
             Admittedly the way to field which is being claimed by the
B     complainant party, is not a sanctioned way, so much so that it is
      not even recorded in the revenue record. The complainant party
      is claiming it through prescription. If prescription has such
      maturity in it that it got converted into an actionable right, the
      complainant party could have sought a declaration to that effect.
      Without taking recourse to the lawful measures, the complainant
C     party insisted on sing that way by courtesy only. This puts the
      complainant party on the offensive, and in that way the
      complainants stand on a weaker footing when they assert that
      the accused assaulted them. There were enough provocations
      created by the complainants to the accused persons by asserting
      a right, which was not a legally recognized right. In that
D     background when the complainants and the accused, entered into
      a conflict, then the question of common object stands ruled out.
      Both the parties have quarrelled, and have inflicted injuries to
      each other. It was almost a case of free fight and in that view
      of the matter, invoking Section 149 IPC is not considered proper
E     by us and, therefore, Section 149 IPC deserves to be excluded
      from consideration.
             When Section 149 IPC is taken out then individual
      participation has to be seen to the deceased it was only accused
      Meh Ram, who is said to have caused injuries. All other accused
      persons were held guilty with the aid [sic] of Section 149 IPC.
F     Conviction with the aid of Section 149 IPC, therefore, deserves
      to be set aside. After setting aside the conviction of other accused
      persons except Meh Ram under Section 302 IPC they stand
      convicted under Sections 323, 324, 147 and 148 IPC. For those
      offences whatever period they have already undergone can be
      considered sufficient and in that view of the matter, the appeal
G     of the accused Ram Niwas, Heera Ram, Ram Narayan and
      Baxa Ram is allowed to the extent that the conviction under
      Section 302/149 IPC is set aside. Their conviction under Sections
      323, 324, 147 and 148 IPC is maintained and the period already
      undergone which is more than 5½ month is considered sufficient
H     to meet out the ends of justice.
          STATE OF RAJASTHAN v. MEHRAM & ORS.                             249
                 [A. M. KHANWILKAR, J.]

            Now we take up the case of accused Meh Ram. He is             A
      said to have caused the total blow. But that was in the
      background that both the parties fought a free fight. Meh Ram
      himself has sustained injuries and in that view of the matter it
      can be said that he cannot have the intention of causing death
      of the deceased. It may be said that he had exceeded his right
                                                                          B
      of private defence. At best a case under Section 326 IPC can
      be said to be made out against him.
            In the result, the appeal of accused Ram Niwas, Heera
      Ram, Ram Narayan and Boxa Ram accused is partly allowed.
      Their conviction and sentence under Section 149 IPC is set aside
      and their conviction under Sections 323, 324, 147 and 148 IPC       C
      is maintained. As regards the sentence, the period already
      undergone is considered sufficient to meet the ends of justice.
             So far as accused Meh Ram is concerned, his conviction
      under Section 302 IPC is converted into one under Section 326
      IPC and his conviction under Section 148 IPC is maintained.         D
      However, he is sentenced to the period already undergone. Meh
      Ram is directed to pay compensation to the tune of Rs.50,000/-
      to the next of kin of the deceased.”
       9. After having gone through the relevant evidence and
judgments of the trial Court and the appeal Court (High Court), we have   E
no reason to depart from the conclusion reached by the trial Court that
there weretangible circumstances and evidence to indicate that the
accused party was the aggressor, who was hiding in the bushes and
appeared only after the complainant party arrived on the spot. The
accused party had assembled at the spot with lethal weapon(s) and all     F
the accused were waiting for the complainant party to arrive at the
spot and started assaulting the complainant party. The blows inflicted
by the concerned accused, in particular accused No. 5, were with an
intention to kill Bhura Ram (deceased). The death of Bhura Ram was
caused due to the blow inflicted by accused No. 5 and was a homicidal
death. We have no reason to depart from the said findings recorded        G
by the trial Court and if we may say so, the same remained undisturbed
by the High Court. The High Court by its cryptic judgment, proceeded
on the erroneous assumption that the accused party had been provoked
due to the unauthorised entry of the complainant partyon their fields
and to defend their possession, they had to resort to right of private    H
250             SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A     defence. While doing so, the accused party, in particular, accused No.
      5 (Mehram S/o Chhagna Ram), exceededhis right of private defence.
      There was no common object because the incident in question occurred
      due to provocation andspiralled into a free fight, causing injuries to both
      sides. The fallacy in the reasoning of the High Court is palpable from
      the evidence of prosecution witnesses, which has been elaborately
B
      analysed and rightly accepted as truthful by the trial Court, substantiating
      the allegationsagainst the accused party of being the aggressors. Once
      it is a case of accused party being the aggressors and they commenced
      assault on the complainant party andfurther, the accused No. 5
      (Mehram S/o Chhagna Ram) having been found to have assaulted
C     Bhura Ram (deceased) with intention to kill him, the question of invoking
      the right of private defence does not arise. In fact, no defence evidence
      was produced to substantiate the plea of exercise of private defence.
      The two theories (of being aggressors as opposed to exercise of right
      of private defence) are antithesis to each other.
D           10. Had it been a case of complainant party being the aggressor,
      the accused party andaccused No. 5 (Mehram S/o Chhagna Ram) in
      particular, could be heard on the factum of right of private defence.
      The nature of injuries caused to the complainant party and to the
      accused party are also indicative of the fact that the accused party was
      the aggressor. As regards the injuries caused to the deceased (Bhura
E     Ram) due to the assault by the accused No. 5 (Mehram S/o Chhagna
      Ram), as noted in the post-mortem examination (Exhibit P-11) by Dr.
      Ghodawat, the same reads thus:-
            “1.Incised wound of size 5.1 cm. x bone deep. This injury was
            in the middle parietal region of head. Underneath which
F           bone was fully cut in obesity. All membranes covering brain
            were cut. Brain matter was appearing from the deepness
            of wound.
            2.One bruise of size 3.x2 cm. which was in the middle of left
            foot on front portion. Injury was ante mortem in nature. Brain
G           matter was also cut parallel to the deepness of wound, which
            was cut up to half cm.”
                                                            (emphasis supplied)
      In the opinion of the doctor, the cause of death of Bhura Ram
      (deceased) was brain injury and due to the injury No. 1. The fact that
H
           STATE OF RAJASTHAN v. MEHRAM & ORS.                                    251
                  [A. M. KHANWILKAR, J.]

the death was caused by the injury No. 1 alone, does not mean that it             A
was not a case of homicidal death. Nor there can be presumption that
there was no intention to cause death by inflicting such injury. The
evidence on record has been duly analysed by the trial Court and it
has been held that accused No. 5 (Mehram S/o Chhagna Ram) had
caused injury No. 1 with intention to cause death of Bhura Ram
                                                                                  B
(deceased) to teach lesson to the complainant party for their repeated
unauthorised entry on the fields belonging to the accused party despite
warnings and obstructions caused in that behalf in the past.
       11. We may now usefully refer to the injury report (Exhibit D-7)
of accused No. 5 (Mehram S/o Chhagna Ram), who had suffered
simple injuries on his person caused by blunt weapon. The description             C
of injuries therein reads thus: -
            “1. Abrasion 1 x 1 cm which was in the middle posterior
                region of left fore-finger;
             2. Abrasion 1 x .3 cm. in the middle top portion of left index       D
                finger;
             3. Bruise 6 x 1 cm. over Rt. Shoulder oblique placed.
             4. Two abrasions 1.5 x 4 cm. in the lower portion of Rt.
                Thigh, both were placed at a distance of 0.5 cm. each
                other.                                                            E
             5. Injured was complaining pain in his left foot.”
        From the description of injuries, it is amply clear that these injuries
are superficial and as rightly found by the trial Court, will have no
bearing on the prosecution case, even if the same remain unexplained.
                                                                                  F
The fact that some of the accusedhad received grievous injuries, does
not belie the prosecution case that the accused were the aggressors.
There was no reason for the accused to remain in hiding position
equipped with lethal weapon(s), waiting for the arrival of the complainant
party and on their arrival, to immediately commence attack and cause
fatal injuries to the complainant party. Such being the factual matrix, it        G
is unfathomable as to how the plea of right of private defence could
be invoked by the accused. If such a plea is not available, the question
of answering the plea in favour of the accused that it was a case of
excessive exercise of right of private defence does not arise at all. The
basis of the High Court judgment being flawed in this regard, the
                                                                                  H
252            SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A     conclusion recorded by it cannot stand the test of judicial scrutiny. For
      the same reason, the question of converting the offence under Section
      302 to one under Section 326 cannot be countenanced, both on facts
      and in law.
             12. Indeed, the trial Court’s finding of guilt recorded against
B     accused No. 5 (Mehram S/o Chhagna Ram), is unexceptionable.
      However, on the nature of offence, the trial Court considered the plea
      of the accused only in reference to offence falling under Section 304
      Part II of the IPC. The trial Court rejected that argument and we must
      uphold that conclusion, because the finding of fact is that the act was
      done by the accused with the knowledge that it is likely to cause death,
C     and with intention to kill Bhura Ram (deceased). But before we express
      our final opinion, it is necessary to examine as to whether the case in
      hand would be covered under the exceptions predicated in Section 300,
      IPC, so as to apply Section 304, IPC – be it Part I or Part II thereof.
      The facts of the present case would indicate that the accused, in
D     particular accused No. 5, at the relevant time, was deprived of the
      power of self-control by grave and sudden provocation due to repeated
      unauthorised entry on the fields belonging to accused party. Further,the
      solitary fatal blow on the vital part of the head by accused No. 5 caused
      the death of Bhura Ram (deceased). The provocation was not invited
      by the accused party, but was obviously at the instance of the
E     complainant party,who entered the fields unauthorizedly despite the
      objection taken by the complainant party in that regard on the same
      day earlier. However, as the death of Bhura Ram (deceased) was
      caused by the act of accused No. 5 giving one fatal blow on the head,
      which was with the intention of causing his death or causing such bodily
F     injury as is likely to cause death, the case would be covered by Section
      304 Part I, IPC. It is certainly not a case to simply proceed under
      Section 326 of the IPC, as held by the High Court. We disapprove
      that approach of the High Court. Even if the High Court had justly
      applied Section 326, IPC, we fail to appreciate as to how the High Court
      could have imposed sentence only for a period (about five months)
G     undergoneconsidering the nature and gravity of the offence and the
      background in which it is committed by the accused party, in particular,
      accused No. 5.
             13. The learned counsel for the accused No. 5 was at pains to
      persuade us that the said accused is now about 70-75 years of age
H     and at this distance of time, it may not be appropriate to send him back
          STATE OF RAJASTHAN v. MEHRAM & ORS.                                 253
                 [A. M. KHANWILKAR, J.]

to jail. Taking overall view of the matter, we are not impressed by this      A
submission. Even in case of offence under Section 326, IPC, which
commended to the High Court, the same was punishable with
imprisonment for life or with imprisonment of either description which
may extend to ten years and also liable to fine. Had it been a conviction
under Section 326, as aforesaid, the sentence of only about five months
                                                                              B
in the facts of the present case, by no stretch of imagination, was
adequate.
      14. Be that as it may, in our considered opinion, the accused No.
5 (Mehram S/o Chhagna Ram) deserves to be convicted for the offence
punishable under Section 304 Part I of the IPC. For the reasons already
recorded, it is unnecessary for us to dilate on the decisions of this Court   C
pressed into service regarding approach to be adopted by the Court in
respect of cases pertaining to accused exceeding his right of private
defence.
        15. Taking overall view of the matter, we are of the considered
opinion that in this case, the accused No. 5 (Mehram S/o Chhagna              D
Ram) deserves to be awarded sentence of ten (10) years of
simple imprisonment and he must pay compensation to the tune of
Rs.50,000/- (Rupees fifty thousand only) to the next kin of the deceased,
if it is yet to be paid in terms of order of the High Court.
      16. Accordingly, we partly allow this appeal. The impugned              E
judgment of the High Court and that of the trial Court are modified by
convicting the accused No. 5 (Mehram S/o Chhagna Ram) for offence
punishable under Section 304 Part I and Section 148, IPC. He is
sentenced to undergo simple imprisonment for ten (10) years for offence
punishable under Section 304 Part I and six (6) months’ simple                F
imprisonment for offence punishable under Section 148 and fine of
Rs.100/- on each count, in default to undergo fifteen (15) days’ additional
simple imprisonment. Both sentences to run concurrently. Further, the
period already undergone by accused No. 5 (Mehram S/o Chhagna
Ram) shall be adjusted by giving the benefit under Section 428, Cr.P.C.
In addition, the accused No. 5 (Mehram S/o Chhagna Ram) is directed           G
to pay compensation to the tune of Rs.50,000/- (Rupees fifty thousand
only) to the next of kin of the deceased (Bhura Ram), if already not
paid. The bail bonds stand cancelled and the accused No. 5 (Mehram
S/o Chhagna Ram) is directed to surrender within six weeks from the
date on which lockdownin the country due to pandemic COVID-19                 H
254                SUPREME COURT REPORTS                     [2020] 5 S.C.R.


A     including in the State of Rajasthan is relaxed, to undergo the remaining
      sentence period.
             17. The appeal is disposed of in the above terms. Pending
      interlocutory applications, if any, shall stand disposed of.

B
      Ankit Gyan                                              Appeal disposed of.




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D




E




F




G




H