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CHOTHU RAM V/S STATE OF RAJASTHAN & ANOTHER, decided on Thursday, March 31, 2011.
[ In the Supreme Court of India, Criminal Appeal No. 98 of 2007 with Appeal (Crl) No. 963 of 2008 & Appeal (Crl.) No. 964 of 2008. ] 31/03/2011
Judge(s) : HARJIT SINGH BEDI & CHANDRAMAULI KR. PRASAD
Advocate(s) : Ridhima Garg, Shobha, , Dr. Manish Singhvi, AAG., Milind Kumar. R1, Bajwa S.R. Singh, Sr. , Ashok K. Mahajan, P.D. Sharma, Milind Kumar, , R2, M.R. Calla, Sr. , Rishi Matoliya, Pratiksha Sharma, Amar Deepatwal, P.D. Sharma.
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  "2014 (16) SCC 466"  ==   ""  







    1. We have heard the learned counsel for the parties at very great length.2. There are three appeals before us : Criminal Appeal No. 98 of 2007 which has been filed by the complainant impugning the acquittal of Khuma Ram whereas Criminal Appeal No. 963 of 2008 has been filed by the State of Rajasthan impugning the acquittal of Raju for the offence under Section 302 of the Indian Penal Code and his conviction under section 304 Part I of the Indian Penal Code and the third has been filed by the State of Rajasthan being Criminal Appeal No. 964 of 2007 impugning the acquittal of Khuma Ram. In the course of the trial 13 persons were tried in Sessions Case No. 34 of 1999 for offences punishable under Section 302/34 of the IPC. The trial court in its judgment dated 4th January 2001 convicted the accused as under:The accused Raju @ Raj Kumar is hereby held guilty for committing offence under Section 302 323 r/2 149 147 IPC and Section 3/25 and 3/27 of arms Act but he is acquitted from the offence punishable under Section 302 r/2 Section 34 and 149 448 IPC.The accused Shankar is found guilty for committing offence under Section 147 323 4/w 149 IPC an Section 30 of arms Act but he is acquitted from the offence punishable under Section 448 IPC.The accused Vinod Dwarka Prasad Mishri Lal @ Parmeshwar Nagarmal Dalu Ram Madan Lal Hari Prasad Babu Lal and Sukhdeva Ram are hereby held guilty for committing offence under Section 147 323 r/w 149 IPC but are acquitted from the offence punishable under Section 448 IPC.3. Two appeals were thereafter filed in the High Court one by Raju and the other by Khuma Ram.The High Court has by the impugned judgment acquitted Khuma Ram in to to and modified the conviction and sentence of Raju from one under Section 302 of the IPC to one under Section 304 Part II of the IPC. He has already undergone seven years sentence. As mentioned earlier three appeals mentioned above have been filed against the judgment of the High Court.4. We have perused the judgment of the High Court with the help of the learned counsel for the parties. We have also gone through the evidence with their assistance. We find that several reasons have been given by the High Court with respect to the acquittal of Khuma Ram.It has been held that the story that Khuma Ram too had fired at Mahesh is not supported by the circumstantial evidence as it appeared that both the injuries had been caused by the shot fired by Raj Kumar. For arriving at this conclusion the High Court has relied on the evidence of P.W. 15 Dr. T.S. Chaudhary who had conducted the autopsy on the dead bodies. Moreover it has been found by the High Court that Khuma Ram did not belong to the village in question had no occasion to see the members of the complainant party and the possibility that it was a case of over implication could not be ruled out. The Court also noticed that six of the accused party had sustained injuries which had not been explained by the prosecution and as Khuma Ram had not sustained any injury which indicated that he may not have been present. We are therefore of the opinion that no interference is called for insofar as Criminal Appeal Nos. 98 and 964 of 2008 are concerned. These appeals are accordingly dismissed.5. We now take up Criminal Appeal No. 963 of 2008.6. It has been argued by Dr. Manish Singhvi and Ms. Ridhima Garg the learned counsel for the appellant that in the light of the fact that the primary role had been attributed to Raju respondent and the fact that there were several injured witnesses to support the prosecution story the observations of the High Court that the case of the respondent was covered by Exception 2 to Section 300 of the IPC was not called for. It has been pointed out that as per the prosecution story the accused party had gone near the house of the complainant party and had fired indiscriminately at them killing two persons. The learned counsel for the respondent-accused has however pointed out that the complainant party had not explained the injuries on the accused and Chhotu Ram P.W. the first informant had categorically deposed that he did not know if any injury had been caused to the accused and that in his presence no injury has been caused.7. The trial court has examined this matter. We see that sufficient reasons had been recorded by the High Court for arriving at the conclusion that the matter fell within Exception 2. In particular it has been found that it was the case of the complainant party that they had first thrown stones at the accused who had then fired two or three fire shots was probably the correct story. We have also examined the site plans Exhibits P2 and P6. They clearly reveal that the presence of stones not only in the court yard of the house of Shankar father of Raj Kumar respondent but even out side the house in the street. The evidence also indicates that before the shots had been fired by Raj Kumar at the deceased he had fired in the air to scare a way the attacking complainant party. The High Court has held that in this view of the matter the prosecution having suppressed the genesis of the incident and that Raju had opened fire in order to save himself and his father from serious injury at the hands of the complainant party it could be inferred that the right of private defence would have arisen to the respondent Raj Kumar but by using the gun and by firing two shots he had exceeded that right. In the light of the fact that the High Court has examined the evidence and given several reasons we find that no cause for interference is made out even in Criminal Appeal No. 963 of 2008. This too is dismissed.