Indian Penal Code, 1860.

RAJESH KUMAR V.
DHARAMVIR, 1997
SUBMITTED BY- KARANBIR SINGH
CLASS- B.A. LLB. Hons.
SECTION- B
SEMESTER- FIFTH
ROLL NUMBER-13412
SUBMITTED TO- PROFESSOR PUSHPINDER KAUR

11/8/2017
 ACKNOWLEDGEMENT

The success and outcome of this project required lot of guidance and supervision as it was for the first
time that I was doing such a project work. I am extremely lucky to have Madam Pushpinder Kaur as my
mentor in this project who guided us on each and every step and helped me to learn a lot of new things
about the subject. Also I would like to thank my friends and my parents who helped me a lot during the
whole research for the project and up to its completion.

Karanbir singh

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 INDEX

Topic Page No.

Facts of the case 3

Charges involved 5

Arguments by Appellant 6

Argument by Respondent 7

Judgment 8

Critical Analysis 11

Two case laws 12

References 14

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 FACTS OF THE CASE

This is an appeal filed by the aggrieved party Rajesh against the decision of the High Court as the High
Court set aside the convictions and sentences given by the trial court to the accused Dharamvir. The
case is explained in the following manner.

Dharamvir, a resident of Samalkha in the District or Karnal, along with his three brother Shakti
Singh, Subhas and Suresh, and son Yudhvir was accused of rioting, committing the murders of
Yogesh, his father Dinesh, and his grand- father Suraj Bhan, and attempting to commit the
murder of his brother Rajesh the appellant.
The deceased Dinesh Chander was the younger brother of Tulsi Ram, who is the father of
accused Dharamvir, Shakti Singh, Subhash and Lachhi Ram (since deceased). The families and
Dinesh and Tulsi used to live in adjacent houses, both of which open into a lane on the west.
To the adjacent east of the house of the accused is a shop with a common inner boundary wall.
Over that shop litigations were going on between the two families and a few days before the
incident, out of which these appeals stem, a decree was passed in favour of deceased Suraj
Bhan by the Additional District Judge, karnal.As of now the the possession of the shop was with
Tulsi Ram after the eviction of the tenant.

Now both prosecution and defense presented the case differently.

According to the prosecution case on the day of getting the possession of the shop the five
accused and lachhi Ram started demolishing the inner boundary wall of the 'shop in order to
make it a part of their own house. On hearing the sound of pounding on the wall Yogesh went to
the lane in front of their house and asked the accused not a demolish the wall. Immediately
thereafter accused Dharamvir, armed with a Lathu, and other four accused and lachhi Ram with
knives came out of the shop and started inflicting blows on Yogesh with their respective
weapons. On hearing the alarms raised by him when Rajesh , his father Dinesh Chander, and his
grand-father Suraj Bhan came forward to his rescue Subhas, Lachhi Ram and Suresh, assaulted
Rajesh with their knives. All the five accused person and lachhi Ram also assaulted Dinesh
Chander and Suraj Bhan causing injuries on their persons. At that stage Dinesh Chander fired a
shot from his licensed gun, which hit Lachhi Ram. In the meantime Krishna Devi , mother of
Rajesh, had also reached the spot. Thereafter the five accused persons ran away with their
weapons. Though Yogesh had succumbed to his injuries there, his body was taken to the local

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 primary health Centre, where injured Dinesh Chander, Suraj Bhan, and Lachhi Ram were
removed for treatment. Injured Rajesh however first went to Samalkha Police Station to lodge
the FIR.
According to defense "On the day of occurrence at about 3.00/4.00 P.M. Lachhi was in the
process of breaking the wall of the shop of make it a part of our house after Shakti had taken
possession of the shop in a legal manner. Rajesh and his brother Yogesh after hearing the noise
came outside our house while armed with knives. They started knocking at their closed door but
Lachhi did not bother in spite of the fact that they had started abusing them.Subhash also came
down stairs with a knife because he had seen Rajesh and Yogesh armed with knives and in an
aggressive mood both of them attacked Lachhi and Subhash. Lachhi caused injuries to Rajesh
with the hand- pump handle and was successful in throwing down his knife. When Lachhi was
being attacked by Yogesh Subhash gave him a blow in his back. Meanwhile Lachhi grappled with
Yogesh and dis-armed him and snatched his knife.. Meanwhile Dinesh armed with a gun and
Suraj Bhan armed with laths came there and Suraj Bhan gave a lathi blows to Lachhi and
Subhash. Subhash grappled with Suraj Bhan and gave him knife blows in self defence.
Meanwhile Dinesh fired shots and one shot hit Lachhi as he was re-loading his gun, Lachhi gave
him blows but he was successful in reloading the gun. He fired on more shot at Lachhi. Suraj
Bhan fired a shot towards Subhash and he ran away to save his life. The other four accused
denied their presence at the spot at the time of the incident and accused Shakti claimed that at
the material time he was with his lawyer at Panipat.
In support of their respective cases the prosecution examined twenty three witnesses and
defense examined five witnesses.

CHARGES FRAMED

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 Rioting, armed with deadly weapon under section 148 of the Indian Penal Code
Murder under section 302 of the Indian Penal Code
Attempt to murder under section 307 of the Indian Penal Code

ARGUMENTS BY THE APPELLANTS

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Mr. Uma Datta, the learned counsel appearing for the appellants, contended that-

The judgment of the High Court was patently wrong as it was based on contradictory findings
and misappreciation of principles of law relating to the exercise of right of private defense
Right of private defence can be exercised only to repel unlawful aggression and not to retaliate.
The evidence of the two doctors is varying regarding the number of injuries found on accused
and also the nature of injuries show that they cannot be caused by knife.

ARGUMENTS BY RESPONDENT

Mr. Kohli, the learned counsel appearing for the respondents, contended that-

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 The order of acquittal passed in their favor was based on proper appreciation of evidence and
this Court would not be justified in interfering with the same, more so, as it was neither vitiated
by any grave error of law nor did it cause serious miscarriage of justice.
The complainants committed the offence of mischief as they damaged the outer door of the
house of respondents.
The respondent had gone to see certain advocate for consultation with regard to certain matter
at the time when occurrence took place.

HELD

The first contention that was raised in this case was that the judgment of the High Court was patently
wrong as it was based on contradictory findings and misappreciation or principles of law relating to the
exercise of right of private defence. In refuting the above contentions Mr. Kohil, the learned counsel

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appearing for the accused respondents, on the other hand submitted that the order of acquittal passed
in their favor was based on proper appreciation of evidence and this court would not be justified in
interfering with the same, more so, as it was neither vitiated any grave error of law nor old it cause
serious miscarriage of justice. The court here said that it is true that ordinarily this court does not
interfere with an acquittal recorded buy the High Court but if it is found that the order of acquittal
suffers from substantial errors of law and fact, it becomes the duty of this Court to interfere with the
same to redeem the course of justice. Having carefully gone through the impugned judgment in the light
of the evidence on record the court found that this case essentially calls for such interference. In view of
the respective cases of the parties as detailed above, there is no room for doubt that in course of the
incident that took place on that fateful afternoon, Rajesh, his brother Yogesh, their father Dinesh and
grand- father Suraj Bhan as well as Lachhi Ram, brother of accused Shakti Singh, sustained injuries. The
parties however joined issue as to the manner in which the occurrence took place and, for that matter,
how the victims sustained those injuries and all, except Rajesh, met with their death. Coming now to the
manner in which the incident took place, there were two versions of the story-one by the prosecution
and other by the defense. On a detailed discussion of the evidence and correlating the same with other
evidence adduced by the parties the trial court accepted the version of the prosecution in preference to
that of the defense however High Court was of opposite view. The view of High Court was even contrary
to the case put up by the accused. The Supreme Court after going through all the evidences was inclined
towards the story of the complainant. This was proved by certain observations. The first observation is
that the court believed that the defense witness, a photographer who was used to prove that the
complainant party broke the leaf of outer door of their house to be a procured witness. This was due to
the fact that there were many photographers to whom the accused could have gone to but they
preferred this photographer whose shop was very far from the place of incident and also there was no
previous acquaintance with this photographer. Also the defense counsel pleaded that the accused had
sustained serious injuries due to the assault by the complainant with sharp edged knife. However the
evidence given by the two doctors who examined the accused were varying regarding the number of
injuries found on the accused and also the nature of injuries show that they could not be caused by
knife. So these evidence makes it clear that the story put up by the accused is not correct. The court
however said that even if a presumption is made that the accused are speaking the truth and believed
that the killing of Yogesh, Dinesh and Suraj Bhan is justified under the right to private defence then
again there is a flaw. As the accused pleaded that since the complainant party committed mischief, so
they exercised their right of private defence as to property. Now section 96 of the IPC says that right of

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private defence can be exercised only to repel unlawful aggression and not to retaliate. But here the
accused party retaliated to the extent that three persons were killed. Also according to section 105 of
IPC accused entitled to private defence so long as the complainant continued in the commission of the
offence of mischief and not after the offence, mischief in this case has been committed. But there are
findings by the High Court that accused came to the place of occurrence and attacked complainant after
latter had damaged outer door of the house. Hence the accused are not entitled to the right of private
defence.

The next contention is that all the accused except Subhash took the plea to alibi but only Shakti Singh
led evidence to substantiate it. According to him he had gone with the bailiff Dina Nath to Panipat after
the possession of the shop had been delivered to him to consult Shri H.K. Singal who is D.W.2, Advocate
about the other pending case ant to inform him that the possession had been taken and that he was
with Shri H.K. Singal till 5 P.M. on May 5, 1984. Therefore, he stated, he could not have been present at
the time of occurrence, as alleged by the prosecution. In support of his contention he examined Shri
Singal. He deposed that his office timing in summer was from 4.30 P.M. TO 8.00 P.M., and his office used
to be opened by his clerk at 4.00 P.M. On the day Shakti Singh took possession of a shop at Samalkha in
the beginning of May 1984 he came to his office and informed him about it. He lastly stated that Shakti
Singh left his office at about 5.00 P.M. Though D.W.2 claimed to be the Advocate of Shakti Singh in the
litigation, no contemporaneous document was produced by Shakti Singh or D.W.2 in support thereof or
to prove the plea of alibi. In absence thereof it is difficult to believe that D.W.2 i.e. Shri Singal, would be
remembering who met him, on which date and at what time. It is trite that a plea of alibi must be
proved with absolute certainty so as to completely excluded the presence of the person concerned at
the time when and the place where the incident took place. Judged in that context the Court is in
complete agreement with the trial Court that the testimony of D.W.2, for what it is worth, does not
substantiate the plea of alibi raised on behalf of the accused Shakti Singh.

On the conclusions as above the honorable Supreme Court unhesitatingly held that the prosecution has
been able to prove the charges leveled against the accused beyond all reasonable doubt. The Court
therefore, allowed these appeals, set aside the judgment of the High Court and restore that of the trial
court. The five accused-respondents, namely, Dharamvir, Shakti Singh, Suresh, Subhash and Yudhvir,
who were on bail, shall now surrender to their respective bail bonds to serve out the sentence imposed
upon them by the trial Court.

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 CRITICAL ANALYSIS

In this case there was a dispute between two families over the shop which was made with common
inner boundary wall which turned violent and led to the death of three members from the appellant
side and one member from the respondent side. Now the main issue involved in the given case relates
to the right of private defense. Here in this case the respondent party pleaded the killing of the said
persons by them was under the right of private defense of person and property. The High Court in this

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case had accepted the plea of right of private defense of person and property rose by the accused
persons and recorded observations about the manner in which accident took place, which were running
counter to even the case as put up by the accused. The Supreme Court so said that this view of the High
Court was contradictory to the findings of the case both factually and legally.

The Supreme Court in elaborating this point explained that section 96 of the Indian Penal Code provides
that nothing is an offence which is done in the exercise of the right of private defense and the fascicle of
sections 97 to 106 thereof lays down the extent and limitation of such right and this right can be
exercised only to repel unlawful aggression and not to retaliate. Section 105 of the IPC clearly says that
the right of private defense of property against criminal trespass or mischief continues as long as the
offender continues in the criminal trespass or mischief. According to section 96 of IPC nothing is an
offence which is done in the exercise of the right of private defense.

Now the circumstances of the case, witnesses and other evidence point out that the accused came to
the place of occurrence and attacked complainant after latter had damaged outer door of the house So
this attack happened after mischief was committed by the complainant, and so the right of private
defence was denied to the accused. Also the facts point out that it was the respondent party who was
the aggressor and the appellant party did the act in order to repel the aggression shown by the
respondents. From the evidence on the record it is quite apparent that Lachhi, companion of the
accused, was shot after he and Subhash accused had allegedly inflicted injuries to Yogesh (deceased)
and Rajesh. By that time both Dinesh Chander and Suraj Bhan had already received injuries at the hands
of the accused party. The sequence of events clearly shows that Lachhi deceased received firearm
injuries at the fag end, when Yogesh, Rajesh Kumar and Dinesh Chander, and Suraj Bhan had already
received injuries on their person at the hands of the accused party.

So it was concluded unhesitatingly that the respondent party has no right of private defence.

Raghubar and others v. State of U.P. on 27 May 2014

This case is an appeal filed against the judgment and order passed by ADJ Meerut in the case of State v.
Raghubar and others. From the facts of the case, it is conclusive that the accused persons armed with
lethal weapon have gone on the spot to prevent the opposite party from ploughing the field the
possession of which is the main cause of conflict and therein fight has taken place where two persons
from the side of accused have received injuries and from the side of complainant Duli Chand has died

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and others have received injuries and this is also seen that even after Munshi and Raghubar have
received injuries then also Duli Chand has been mercilessly attacked. This led to conclusion the accused-
appellants cannot claim the right to private defense as they themselves are aggressors and no right of
private defense can be claimed by the aggressor himself as held in Kishan v. State of Madhya Pradesh
AIR 1974. Here although the sale deed of the land was in favour of the accused and section 97 gives
right to defend ones body and property but that should be done only to repel and not to show
aggression.

Here also the intention to kill does not appear from the facts and circumstances and possibility of
appellants committing the crime without any intention to cause death cannot be ruled out, but the seat
of injuries, number of injuries does reflect that the appellants had the knowledge that it is likely to cause
death and accordingly, the conviction in the present case is altered from section 302/149 I.P.C.to section
304 part II alongwith section 149 I.P.C that is unlawful assembly and sentence of 8 years of R.I. is
awarded alongwith fine of Rs.2000/- each and in case of default in depositing the fine to undergo 6
months further R.I. Remaining conviction and sentence is affirmed.

State of Rajasthan v. Manoj Kumar on 11 April 2014

This is an appeal by special leave against the judgment and order given by the High Court of Rajasthan.
In this case there was dispute with regard to the ownership and possession over the plot in dispute. One
of the accused party, Raju killed one Anirudh Mishra in the scuffle. Herein this case the trial court
convicted Raju under section 302. of the IPC for murder but the High Court converted this conviction
from section 302 to section 304 part 1 of the Indian Penal Code. The accused persons abjured their guilt

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and pleaded false implication because of property dispute and animosity. In order to prove its case the
prosecution in the first trial examined as many as sixteen witnesses and got marked thirty-seven
documents and also brought eight articles on record. In the second trial, the prosecution examined as
many as twelve witnesses and similar numbers of documents were exhibited. In the second trial the
defence produced one witness and tendered four documents in support of its plea. The accused pleaded
for right of private defense as it is clear that there was a dispute over the land and the possession still
remained with the accused persons. The court said that Rajkumar has exceeded his right of private
defense.

REFERENCES:

1. Indiankanoon.org
2. Supreme Court Law Times
3. www.lawoctopus.com
4. Cyberadvocate
5. Legal service India

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6. Criminal law journals

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