Madhya Pradesh High Court
Lala @ Vishnupratap Singh And Ors. vs The State Of M.P. on 10 October, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
Cr. A. No.784/2003
Lala alias Vishnupratap Singh
S/o Mangleshwar Singh ............Appellant No.1
Anil Singh alias Yadavendra Singh
S/o Mangleshwar Singh ............Appellant No.2
Vs.
The State of Madhya Pradesh ............... Respondent
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Cr. A. No.764/2003
Mahendra Singh
S/o Mangleshwar Singh ............Appellant
Vs.
The State of Madhya Pradesh .............. Respondent
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Division Bench -
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla J.
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Shri S. C. Datt, Sr. Advocate with Shri Siddharth Datt, Advocate for
the appellant.
Shri A. P. Singh, Govt. Advocate for the respondent/State.
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Reserved for orders on : 25.9.2017
JUDGMENT
(Delivered on this ____day of October, 2017) Per Hemant Gupta, Chief Justice The present appeals are directed against the judgment passed by the learned 2nd Additional Session Judge, Rewa on 22.4.2003 in
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Sessions Trial No.25/2001 convicting the Appellant No.1 for an offence under Section 302 of I.P.C., whereas the Appellant No.2 was convicted for an offence under Section 302 read with Section 34 and Section 323 of I.P.C. and vide separate order sentencing them to life imprisonment with fine of Rs.500/- each and R.I. for one year and fine of Rs.500/-. Whereas accused appellant Mahendra Singh has been convicted for an offence under Section 323 of IPC by sentencing him to one year R.I. with fine of Rs.500/-.
02. The prosecution case was set in motion on the basis of statement of Ravendra Singh S/o Rangdev Singh made to Dilip Pandey, ASI, Police Station - Raipur Karchuliyan at about 5:40 p.m. on 25.4.2000. The statement is to the effect that on 25.4.2000 at about 4:00 p.m., Ramshiromani Singh was taking the harvested wheat. When he reached near the house of Mangleshwar Singh, father of the appellants then Appellant No.1 Lala @ Vishnupratap Singh (hereinafter referred to as "Lala" for short) and Yadvendra Singh @ Anil (hereinafter referred to as "Anil" for short) armed with Farsa and Mangleshwar armed with Lathi started abusing Ramshiromani Singh. Ramshiromani Singh started running but all three did not allow him to escape. Anil exhorted that he should not go scot-free, then Lala with a full force hit Farsa on the head of Ramshiromani Singh. He fell down while saying that he has been assaulted (mar gaya). Virendra Singh from his house and Ravindra Singh from his field came running. Anil and Lala ran towards Virendra Singh.
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Anil Singh gave Farsa blow to Virendra Singh, but Virendra Singh escaped. At that time, Bhaiyan and Mahindra Singh came armed with Lathi and started abusing them. Anil Singh gave two Lathi blows on the head of Ravindra Singh, which resulted in bleeding. Mahendra Singh also hit Yogendra Singh with Lathi. On seeing the incident, Dadan Singh, Shailendra Singh and many villagers came to the place of occurrence, but the accused person ran away. The motive is said to be the dispute between Ramshiromani Singh and Lala on account of money contribution at the time of Holi celebration. Both were inimical to each other. The people, assembled at the spot, took Ramshiromani Singh upto the main road on the tractor and thereafter to hospital by shifting him in the truck. On the basis of such information FIR Ex.P-15 was recorded by Dilip Pandey PW-
14. Dilip Pandey also initiated the investigation and sent ASI, S. K. Sharma to Rewa hospital to ensure treatment to the injured. He went to the place of occurrence. On receiving the information of death of Ramshiromani Singh on 2.5.2000, the death report Ex.P-17 was recorded and offence under Section 302 of IPC was added. During investigation on 26.4.2000 at about 9:30 a.m., he prepared the site plan Ex.P-16 on the pointing of Ravendra Singh in the presence of Chhabidhar and Balraj. On 26.4.2000 at about 10:00 a.m., he took sample of blood stained earth and simple earth vide Ex.P-8. Lala was investigated in the presence of witness Devnarayan and Onkar Pratap on 27.4.2000 at about 12:00 noon. He suffered disclosure statement that Farsa is kept concealed in his barn (Khaliyan) under heap of wheat, which he will get recovered. On the basis
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of such disclosure statement Ex.P-9, the Farsa was recovered at about 2:30 p.m. vide memo Ex.P-11. On the same day i.e. 27.4.2000 at about 1:00 p.m., the appellant Anil was also investigated. He disclosed that he has kept Lathi in a heap of gram in his agricultural land. On the basis of Ex.P- 10, Lathi was recovered and taken in possession vide memo Ex.P-12.
03. The articles taken in possession including blood stained earth, simple earth, Farsa and Lathi were sent for examination to Forensic Science Laboratory, Sagar vide memo Ex.P-18. The reports Ex.P-19, P-20 and P-21 was received. The accused Lala, Anil, Mahendra, Mangleshwar and Ajay Pratap Singh were arrested on 27.4.2000 at about 6:00 p.m. On completion of investigation report under Section 173 of Cr.P.C. was filed. The accused claimed trial. After examining the evidence led, the learned Trial Court convicted the appellants as mentioned above, but convicted the accused Mahendra Singh for an offence under Section 323 of I.P.C., whereas Mangleshwar Singh was acquitted.
04. Ravendra Singh PW-12 is informant and on the basis of his statement, FIR Ex.P-12 was recorded. He supported his statement on the basis of which FIR was recorded. He stated that Anil and Bhaiyan Singh had hit him with Lathi. Two Lathi blows by Anil were given on his head. In the cross examination the witness was asked as to whether he can explain as to how the injuries were caused to Lala and Anil, the appellants herein. He stated that they have not received any injury. He denied the suggestion that he has given beatings to Guddi, daughter of Manghleshwar
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and on account of his beatings, the left hand of Guddi got fractured. He denied that whether any case is pending in respect of such injury. In respect of dispute on a Holi festival, he stated that the case was pending, but he cannot say as to whether Lala was acquitted or not. He denied the suggestion that Anil has not given Farsa blow to Virendra Singh. He reiterated that he has given statement to the police that Bhaiyan has given him Lathi blow. After initial beating to Ramshiromani Singh thereafter Virendra Singh was given beatings and he was beaten thereafter. He was confronted with the words "at that time" in the statement Ex.P-15 and statement Ex.D-5. He deposed that he had gone to his field about two hours before the incident and at that time Virendra Singh was at his home. He denied the suggestion that Bhaiyan, Mangleshwar and Mahendra Singh were not present and that Mangleshwar and Mahendra have not given beatings to Ramshiromani Singh, Virendra and to himself. In a cross examination by accused Lala, he stated that on the date of occurrence he has taken meals at about 2:00 p.m. and at that time half of his crop was harvested. He denied the knowledge about how much of field of accused party was harvested. Though, he admitted that accused have agricultural land, but the extent thereof he cannot tell. He stated that he has got 2 - 3 Lathi blows on his head - one from the front and two from the back, but the deceased was given Farsa blow from the front.
05. Virendra Singh PW-9 deposed that when Ramshiromani Singh was taking the harvested crop then there was noise from the house of
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Mangleshwar Singh. House of Mangleshwar Singh is about 100 steps from his agricultural land. Ramshiromani Singh was shouting to save him and to run. Ramshiromani Singh was encircled by Mangleshwar Singh, Lala, Mahendra Singh, Anil Singh and Bhaiyan Singh. He and Ravendra Singh ran towards the house of Mangleshwar. He may be at the distance of 5 to 10 steps when Lala gave Farsa blow on the head of Ramshiromani Singh, as a result Ramshiromani Singh fell down and, thereafter, when he reached the place of occurrence, Anil gave two Lathi blows on his head. Anil Singh gave Lathi blows to Ravendra Singh as well and Yogendra Singh was given Lathi blow by Mahendra Singh on his hand. He, in cross examination, deposed that at the time of occurrence he and Ravendra Singh were in field, but cannot disclose the reason as to why such fact does not find mention in his statement Ex.D-4. He denied the suggestion that he was at his home and came out only after hearing the noise. He cannot say that how in A to A part of Ex.D-4 the words "Sham........nikla"
were written. He asserted that he was standing outside his house. He denied the suggestion that only Anil and Lala were at the place of occurrence and were giving beatings. After reading the statement Ex.D-4, he asserted that not only Anil and Lala but all the accused persons were present. In further cross examination he deposed that they were not having any Lathi or Danda, but 50 to 100 people have assembled at the place of occurrence. The house of Mangleshwar is at about 50 to 60 feet and not 5 to 6 feet from the place of occurrence. He admitted that at the time of occurrence, the ladies of the house came out. In response to the specific
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question as to whether Guddi daughter of Mangleshwar came at the spot, the answer is that she got injury while taking water one or two days earlier from the hand pump. He stated that factum of injuries received by Guddi on the hand pump is being disclosed for the first time, as no such question was asked by the police. He deposed that he saw Guddi limping, but not noticed that whether she got injuries. Guddi is related to be his Bua i.e his father's sister. On that day he was suffering from fever. He denied the suggestion that they have not given beatings to Lala and Anil during intervention nor they notice that they have received any injury. He denied the suggestion that he has no idea that the dispute between Lala and Ramshiromani Singh was on account of collection of funds for Holi festival. The statement in Ex.D-4 that "Holi............beatings" was not given by him. He denied the suggestion that he, Ravendra, Ramshiromani Singh, Yogendra, had gone to the house of accused Lala and Anil to give them beatings. He denied the suggestion that the group of the witness have given beatings to Anil, Lala and Guddi.
06. Dadan Singh PW-5 was named by Ravendra Singh in his initial statement as a person who has witnessed the occurrence. He deposed that deceased Ramshiromani Singh was his elder brother. He deposed that on 25.4.2000, he was shifting wheat after its harvesting and his elder brother was ahead of him. His brother was coming back when he was taking wheat load. When Ramshiromani Singh was near the house of Mangleshwar, he heard the alarm from Ramshiromani Singh that save
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him. He left the bundle of wheat and ran towards his brother. He noticed that Lala had given Farsa blow on the head of the deceased. His brother fell down, but, Virendra Singh, who came forward to intervene, was given Lathi blow by Anil. Lala came forward to hit him, but on account of intervention of Ravendra, Dadan, Yogendra, Shailendra, Nandlal Kol and Jagdish Kol, the situation was saved. Ravendra Singh got injuries. Anil and Lala ran to hit Ravendra, but Anil gave Lathi blow to Ravendra. Mahendra Singh hit Yogendra by Lathi and thereafter, Ramshiromani Singh was put in tractor for taking him to the police station and he stayed in the village to organize money etc. He admitted that house of the accused is on the north of Katheri Marg road and around 20 - 25 hands away, there is one mango tree and there is a field of bamboo about 15 - 20 hands away. Both, the mango tree and the bamboos are that of the accused. In further cross examination, he admitted that when the harvested wheat was taken in the first round, the accused were sitting in front of their house. It is in the second round, he could not find Lala and Anil. When he reached the place of occurrence on the alarm being raised by his brother, he noticed that accused Lala hit his brother and he fell down. He denied the suggestion that when his attention was drawn on alarm being raised by his brother, he saw his brother had fallen down. In response to a question as to where he met Ramshiromani Singh, the answer is that he met on road before the agricultural field. The note of Presiding Officer is that in spite of repeated question, witness said that he met at some distance from the field. He denied the suggestion that the occurrence has taken
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place at the distance of 2 - 4 hands away, where he met Ramshiromani Singh. He volunteered that the occurrence has taken place 2 to 4 Lathi distance (Approx. 10 to 12 feet). In respect of a question that where he met Ramshiromani Singh, the field of the witness is 15 to 20 Lathi distance away. The endorsement of the court is that the witness is silent and not responding even after repeating questions. From the place of occurrence, his land is about 25 feet Lathi away. Ravendra and Virendra got injuries when they intervened. He denied the suggestion that he was not at the place of occurrence.
07. Dr. Ravendra Prasad Dwivedi PW-1, examined injured Yogendra Singh PW-10. He deposed that Yogendra has received injury on the right hand caused by hard and blunt object which was simple in nature. The medical report is Ex.P-1. PW-3 - Dr. Mahesh Kumar Tiwari, C.M.O. examined PW-9 Virendra Singh. He deposed that the injured Virendra Singh received one incised wound on the left parietal region and one incised wound on the right parietal region of the head. His medical report is Ex.P-4. PW-3 - Dr. Mahesh Kumar Tiwari also examined PW-12 Ravendra Singh. He deposed that witness/injured Ravendra Singh received two injuries on the head - one incised wound on the left parietal region and another incised wound on the outer side. The report is Ex.P-5.
08. Postmortem of deceased Ramshiromani Singh was conducted by Dr. S. K. Pathak and PW-8 Dr. Vijay Kumar Tiwari. As per
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postmortem report, deceased Ramshiromani Singh has received the following injuries:-
1. Incised wound - bony deep size 7'' x 3'' on the head.
2. Bruise on the right side of skull size 5'' x 3''.
3. Bruise on the left side of skull size 4'' x 2''.
The opinion of the Board is that the death has occurred on account of injuries caused on the head on account of shock and excessive bleeding. The postmortem report is Ex.P-13.
09. Learned Senior Counsel appearing for the appellants argued that the deceased Ramshiromani Singh was the aggressor, who trespassed into the property of the appellant with an intention to cause injury to the life and property of the appellants. Therefore, the act of the appellant in giving injuries upon the person of deceased Ramshiromani Singh was in right of private defense. Therefore, the act of the appellant is not an offence in terms of Section 97 of IPC, as he has a right to defend his body and property. In terms of Section 100 of IPC, an assault by a defender of the body and property is not an offence. It is also argued that even if the Appellant No.1 Lala has exceeded the right of private defense, then it is a case of sudden fight in a heat of passion without any premeditation and thus, it can be said to be an offence under Section 302 of the IPC and not a case of culpable homicide not amounting to murder punishable under Section 304 of IPC as well. Reliance is placed upon Supreme Court judgment in the case of Jai Narain Mishra and others Vs. State of
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Bihar reported as (1971) 3 SCC 762 and Rampal Singh Vs. State of Uttar Pradesh reported as (2012) 8 SCC 289. It is also argued that the statement of the accused recorded under Section 313 of Cr.P.C. is substantive evidence and is required to be taken into consideration while appreciating the prosecution case. Reliance is placed upon Supreme Court judgment in the case of Hate Singh Bhagat Singh Vs. State of Madhya Bharat reported as AIR 1953 SC 468.
10. Learned counsel for the appellant on behalf of Appellant No.2 Anil submitted that the role attributed to the appellant is of exhorting to Appellant No.1 Lala to attack the aggressors, but such exhortation is not said to be with any common intention, but it appears to be provoked by sudden attack on the life and property of the accused. The learned Trial Court has convicted the Appellant No.2 Anil only on the basis of alleged exhortation from the statements of PW-5 Dadan Singh, PW-7 Shailendra Singh, PW-9 Virendra Singh and PW-12 Ravendra Singh. The finding recorded by the trial Court that there was meeting of mind prior to the occurrence is not made out from the evidence on record. Therefore, conviction of the Appellant No.2 Anil with the aid of Section 34 cannot be sustained. At best, he can be convicted for the role attributed to him in causing injury to the prosecution witnesses.
11. On the other hand, learned counsel for the State vehemently argued that the judgment in the case of Hate Singh (supra) was rendered while examining the provisions of Code of Criminal Procedure, wherein
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an accused was not permitted to enter the witness box and to speak on oath in his own defence.
12. It is also contended that before a plea of taking a life in exercise of private defence is extended, the appellant must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. It is argued that the deceased and his group were not armed with any weapon even Lathis, therefore, the argument that the appellant has acted in the right of private defence is not available to him. It is also argued that the place of occurrence is not landed property of the appellant, therefore, it cannot be said that the deceased and his group were the aggressors, who intend to enter upon the property of the appellant. In support of such argument reliance is placed upon the judgment of Supreme Court in the case of Rizan and another Vs. State of Chhattisgarh reported as (2003) 2 SCC 661 and Radhe Vs. State of Chhattisgarh reported as (2008) 11 SCC 785. Reliance is also placed upon a Supreme Court judgment in the case of Ballam Singh Vs. State of Haryana reported as 1994 Spp (1) SCC 92, wherein it was held that the plea of private defense should appear probable. Absence of injury on the person of the accused was found to be a factor to deny the right of private defence. It is also argued that the Appellant No.1 Lala has given Farsa blow on the head of the deceased, therefore, the act of the appellant in
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causing such bodily injury was with the knowledge that such injury is likely to cause death, therefore, it is an offence under Section 302 of IPC and that the act of inflicting injury by Appellant No.1 does not fall in any of the exception to Section 300 of IPC, so as to come within the ambit of for an offence punishable under Section 304 of IPC.
13. We have heard learned counsel for the parties. We do not find any merit in the argument. The judgment in Hate Singh (supra) has been examined by the Supreme Court in a judgment in the case of Sujit Biswas Vs. State of Assam reported as (2013) 12 SCC 406. It was held that the purpose of examining the accused persons under Section 313 of the Cr.P.C. is to meet the requirement of principle of natural justice. As part of the said principle the accused may be asked to furnish some explanation as regard the incriminating circumstances appearing in evidence against him and the Court must take report of such explanation. Such statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross examined with reference to such statement. The relevant extract of the said judgment reads as under :-
"20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No
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matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.
21. In Hate Singh Bhagat Singh Vs. State of Madhya Bharat - AIR 1953 SC 468, this Court held, that any circumstance in respect of which an accused has not been examined under Section 342 of the Code of Criminal Procedure, 1898 (corresponding to Section 313 Cr.P.C.), cannot be used against him. The said judgment has subsequently been followed in catena of judgments of this court uniformly, taking the view that unless a circumstance against an accused is put to him in his examination, the same cannot be used against him. (See also: Shamu Balu Chaugule v. State of Maharashtra - (1976) 1 SCC 438; Harijan Magha Jesha v. State of Gujarat (1979) 3 SCC 474; and Sharad Birdhichand Sarda v. State of Maharashtra - (1984) 4 SCC 116."
In Sidhartha Vashisht Alias Manu Sharma Vs. State (NCT of Delhi) reported as (2010) 6 SCC 1, the Court has held that the answer given to an accused to a question put under Section 313 of Cr.P.C. are not per se evidence as it is not on oath, secondly the prosecution does not get an opportunity to cross examine the accused, but nevertheless it is subject to consideration by the Court to the limited extent of drawing an adverse inference against such an accused for any false answers voluntarily offered by him. The Court held as under :
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"269. It has been further argued that the evidence of witnesses has not been put to the appellant thereby causing prejudice to the appellant. The said proposition of law is misplaced since a specific provision has been provided by way of Section 315 of the Code whereby an accused can, as a matter of right, appear as a witness on his own behalf. In the present case, the appellants exercised an option declining to do so and in such manner failed to offer any evidence to show loss/removal of his gun. Thus it cannot be urged by the defence merely in order to suit his convenience that his statement may be treated as evidence and that all facts stated therein be treated as true unless contradicted by the prosecution. While answer given by the accused to question put under Section 313 of the Code are not per se evidence because, firstly, it is not on oath and, secondly, the other party i.e., the prosecution does not get an opportunity to cross- examine the accused, it is nevertheless subject to consideration by the Court to the limited extent of drawing an adverse inference against such accused for any false answers voluntarily offered by him and to provide an additional/missing link in the chain of circumstances. The judgment relied upon is of no use to the defence since the same pertains to a period where the law did not allow the accused to step into the witness box as a witness of his own innocence."
14. Thus, we do not find any merit in the argument raised by learned counsel for the appellant that the statement of the accused under Section 313 of Cr.P.C. can be treated as substantive evidence.
15. The cross examination of the prosecution witnesses show the presence of appellants Lala and Anil is not disputed at the time of occurrence. Appellant No.2 Anil in his statement under Section 313 of
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Cr.P.C. stated that when he was threshing his crop in his barn, Ramshiromani Singh along with his accomplices came there and gave beatings to him, his sister Guddi and brother Vishnu. Since he tried to intervene, the injuries were inflicted, but they have not given any beatings except he intervened to stop the altercation. He stated that the deceased Ramshiromani Singh etc. came with a view to kill them on account of previous enmity in respect of festival of Holi. The statement of Appellant No.1 is to the same effect except he stated that his brother Anil is mentally challenged.
16. The graphic details of the role of the appellants have been stated by witness PW-12 Ravendra Singh author of the FIR, PW-9 Virendra Singh and PW-5 Dadan Singh. The fact that the PW-12 Ravendra Singh and PW-9 Virendra Singh have received injuries stands corroborated by the Statement of PW-3 Dr. Mahesh Kumar Tiwari, who has produced the medico legal report of the said witnesses are Ex.P-5 and P-4, respectively. Neither PW-12 Ravendra Singh nor PW-9 Virendra Singh or for that matter PW-5 Dadan Singh have been suggested in the cross examination that they were armed with any weapon. The manner of occurrence is also corroborated by PW-10 Yogendra Singh, who has received the injury as per report Ex.P-1 proved by PW-1 Dr. Ravendra Pd. Dwivedi. The defence version is that the deceased Ramshiromani Singh and his accomplices have caused injuries to the person of Guddi, who got her armed fractured. That is not only the statement of the appellants under
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Section 313 of the Cr.P.C., but also the suggestion given to PW-12 Ravendra Singh and PW-9 Virendra Singh and PW-5 Dadan Singh. However, Guddi has not been examined as defense witness. DW-3 Brajendra Singh has been examined to prove the daily diary report - Ex.D- 11 allegedly lodged by Guddi. The said evidence is not the primary evidence of inflicting injury on the person of Guddi from the hand of deceased Ramshiromani Singh and his accomplices. In absence of testimony of Guddi on oath in Court, the lodging of report in daily diary report is not a substantive evidence which can be taken into consideration to return a finding that Guddi has received an injury in an altercation which took place on 25.4.2000. Dr. K.P. Saket DW-2 has been examined by the appellants to prove the injuries on the person of the Appellant No.1 Lala. The said accused was examined on 28.4.2000. The report is that three abrasions were healed and that there was no fracture. In respect of palm of left hand, there was a complaint of pain, but there was no external injury. On the same date, the same witness examined Appellant No.2 Anil who has received one injury 1/2 cm x 1 cm on the upper rear portion of the head, which was healed injury. There was no external injury.
17. With such nature of evidence on record we find it difficult to return a finding that the deceased and his accomplices were the aggressors as there is no proof that they were armed nor they were on the land of the appellants. In fact, the prosecution evidence is that the deceased Ramshiromani Singh was taking the harvested crop on his head, therefore,
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the deceased and his accomplices were performing routine agriculture activity. Thus, they cannot be called as aggressors. In the case of Darshan Singh Vs. State of Punjab reported as (2010) 2 SCC 333, the Court laid down the principles as to when right of private defence is available. The Court held as under :-
"(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
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(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
18. A three judges Bench of the Supreme Court in a judgment in the case of Raj Singh Vs. State of Haryana reported as (2015) 6 SCC 268 held that to succeed in the plea of private defence, the appellant has to prove that he exercised the right of private defence in his favour and this right extended to the extent of causing death. It was held that the complainant party were not carrying any arms or deadly weapons. The appellant, if at all having any right accrued in their favour while defending themselves, acted in a manner which is unduly disproportionate to the injury which they would have sustained at the hands of the complainant party were not armed with any deadly weapons. The Court held as under :-
"19. In the present case, plea of private defence has been put forth by the appellant. To succeed in the plea of private defence, the appellant has to prove that he exercised right of private defence in his favour and this right extended to the extent of causing death. In the facts and circumstances of the present case, let us consider whether right of private defence was available to the accused. Case of the appellant is that complainant party forcibly entered his house and started fighting and the appellant had reasonable apprehension that he would be hurt and therefore he fired the few shots in the
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air, and during the scuffle, the complainant party tried to forcibly snatch pistol from him and fire was shot which incidentally hit the deceased-Girdhari. Further case of the appellant is that the complainant party armed with weapons were the aggressors and they caused serious injuries to the appellant and his brothers Rishi Pal and Rajpal.
21. Bharat Singh and his brothers were not carrying any arms or deadly weapons. The accused-appellants if at all any right accrued in their favour, while defending themselves, acted in a manner which is unduly disproportionate to the injury which they would have sustained at the hands of complainant party who were not armed with any deadly weapons. Thus, their act of firing shots which resulted in death of Girdhari, was not at all to prevent any injury which was sought to be averted or which could have been reasonably apprehended. At no point of time, any reasonable apprehension of death or grievous injury was perceivable, but the accused- appellants aggressively acted and fired shots at deceased. Relying upon the evidence of PW-5-Anil Kumar, High Court also recorded a finding that appellant fired Girdhari from a short distance of four to five feet, even when the complainant party was not armed with lethal weapons. Appellant fired at Girdhari recklessly from a close range indicating that the appellant-accused party were the aggressors. Law does not confer a right of self- defence on a man when he himself was the aggressor. In the present case, the complainant party were not armed with lethal weapons; but the appellant was armed with a pistol. When the appellant and his party were the aggressors firing several rounds of firearm, the High Court rightly held that the plea of self defence raised by the accused is not sustainable. We find no reason warranting interference with the conviction of the appellant under Section 302 IPC and sentence of life imprisonment imposed on him."
In a separate order concurring with the majority view Hon'ble Mr. Justice T. S. Thakur held as under :-
"31. Section 99 IPC deals with acts against which there is no right of private defence and, inter alia, provides that the
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right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 IPC deals with situations in which the right of private defence of the body extends to voluntarily causing death or of any other harm to the assailant, if the offence which occasions the exercise of the right is one of the kind enumerated under the said section. The offences enumerated under the said provision include offences like causing death, grievous hurt, committing rape, gratifying unnatural lust and assault with the intention of kidnapping or abducting. Section 103 IPC similarly deals with the right of private defence of property in situations enumerated thereunder, which includes offences like robbery, house- breaking by night, mischief by fire committed of any building, tent or vessel used as a human dwelling etc.
32. A conjoint reading of provisions of Sections 96 to 103 and Exception 2 to Section 300 IPC leaves no manner of doubt that culpable homicide is not murder if the 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, provided that such right is exercised without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. A fortiori in cases where an accused sets up right of private defence, the first and the foremost question that would fall for determination by the Court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him. If the answer to that question is in the negative, Exception 2 to Section 300 IPC would be of no assistance. Exception 2 presupposes that the offender had the right of private defence of person or property but he had exceeded such right by causing death. It is only in case answer to the first question is in the affirmative viz. that the offender had the right of defence of person or property, that the next question viz. whether he had exercised
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that right in good faith and without premeditation and without any intention of doing more harm that was necessary for the purpose of such defence would arise. Should answer to any one of these questions be in the negative, the offender will not be entitled to the benefit of Exception 2 to Section 300 IPC of the Code.
33. Absence of good faith in the exercise of the right of private defence, premeditation for the exercise of such right and acts done with the intention of causing more harm than is necessary for the purpose of such defence would deny to the offender the benefit of Exception 2 to Section 300 IPC. The legal position on the subject is fairly well settled by a long line of decisions of this Court to which copious reference has been made by Banumathi, J. No useful purpose would, therefore, be served by referring to them over again. All that need be said is that whether or not a right of private defence of person or property was available to the offender is the very first question that must be addressed in a case of the present kind while determining the nature of the offence committed by the accused, whether or not a right of private defence was available to an offender is, in turn, a question of fact or atleast a mixed question of law and fact to be determined in the facts and circumstances of each individual case that may come up before the court."
19. In another judgment in the case of Brij Lal Vs. State of Rajasthan reported as (2016) 13 SCC 347, the Court observed that whilst it is open to an accused to raise a defence in the nature suggested to raise a plea of private defence, but 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.
"25. The first contention advanced at the hands of learned counsel for the appellant was, that the appellant had fired
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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 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. .......
30. Having perused the judgments relied upon by learned counsel for the appellant, and keeping in mind the facts and circumstances of the 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 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.
20. In Ballam Singh's (supra) the Supreme Court while examining the right of private defence observed as under :-
"5. There is nothing unusual if all the brothers who are agriculturists had gone together to prepare the fields. Be that as it may, since the accused himself has come forward with a plea of self-defence, it should atleast appear probable. The accused need not prove the same beyond all reasonable doubt but when invokes the exception of benefit of right of private defence, the circumstances should atleast probable the same. Ballam Singh stated that the deceased and his 3-4 relations came to his house and assaulted him. But there was not even a single injury found on his body. As to how the body of the deceased happened to be in his court-yard, has been clearly stated by the eye-witnesses and that is the version given by
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P.W. 10 in the earliest report. The High Court has rightly held that the version given by Ballam Singh is not at all plausible. The only inference that can be drawn is that he shot at the deceased intentionally. The High Court has rightly held that the appellant was responsible for causing the death of the deceased."
21. In Rizan and another (supra), the Court has held that the right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or commit the offence. The right lasts so long as the reasonable apprehension of the danger to the body continues. In order to find out whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors. The Court held as under :-
"15. Sections 102 and 105. IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commence, as soon as a reasonable apprehension of danger to the body arises from an attempt, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab - AIR (1963) SC 612, it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.
16. In order to find whether right of private defence is available or not, the injuries received by the accused, the
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imminence of threat to his safety, the injuries caused by the accused and the circumstance whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill and take the case out of the purview of private defence. Similar view was expressed by this Court in Biran Singh v. State of Bihar - (1975) 4 SCC 161 and recently in Sekar @ Raja Bekharan Vs. State (2002) 8 SCC 354."
22. In Jai Narain Mishra's case (supra), the High Court set asie the judgment of acquittal and convicted the accused. The High Court convicted the appellants for their individual acts as it was not found a case of conviction with the aid of Section 149 or Section 34 of IPC. The said judgment does not provide any assistance to the argument raised by learned counsel for the appellants.
23. Thus, on the basis of the evidence led and the fact that the deceased and his party were not armed, but were performing routine agricultural activity, it cannot be said that the acts of Appellant No.1 Lala was in his right of self-defence. This is apart from the reason that Guddi, who is said to have received injuries in the scuffle has not been examined.
24. Shri Datt, Senior Counsel then relied upon the Supreme Court judgment in the case of Rampal Singh Vs. State of Uttar Pradesh reported as (2012) 8 SCC 289 to contend that the offence of culpable homicide amounting to murder is not made out. The argument of learned counsel for the appellants is that the prosecution has not led any evidence
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that the injuries suffered by the deceased Ramshiromani Singh were sufficient to cause death in ordinary course of nature, therefore, offence punishable under Section 302 of IPC is not made out.
25. As to when the offence punishable under section 302 of IPC is made out has been examined in judgment in the case of Virsa Singh Vs. State of Punjab reported as AIR 1958 SC 465, wherein while examining the question that while considering as to whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It was held that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly";
"First, it must establish, quite objectively, that a bodily injury is present ;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
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13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
26. In Rampal Singh's case (supra) the Court has held that the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation, provided such provocation was not at the behest of the offender himself, culpable homicide would not amount to murder. It was held therein that all these are questions of facts and would have to be determined in the facts and circumstances of a given case. The relevant extract reads as under :-
"17. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing
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bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to 'murder'. It is also 'murder' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to 'culpable homicide amounting to murder'. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre- mediation. Where the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, 'culpable homicide would not amount to murder'. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case."
The Court quoted from the cases of Vineet Kumar Chauhan Vs. State of U. P. - (2007) 14 SCC 660, Virsa Singh (supra) and Rajwant Singh V. State of Kerala - AIR 1966 SC 1874, it was held that whether the offence is murder or culpable homicide not amounting to murder, the problem is required to be considered in three stages - first stage is that the accused has done an act by doing which he has caused the death of another. Second stage is as to whether the act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third
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clause of Section 299 is applicable. If the question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of IPC. But these were said to be the broad guidelines. The Court further observed as under :-
"21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really "murder", but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor - AIR 1931 Lah 63, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009)
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22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed."
27. In the light of the principles of law enunciated in the aforesaid judgments, we find that the act of Appellant No.1 Lala in giving Farsa blow on the head of the deceased was the cause of death. In view of the test thirdly as laid down in Virsa Singh's case (supra), it was not accidental or unintentional injury as there was intention to inflict injury on the head when the appellant used sharp aged weapon on the head of the deceased. The test fourthly as in the aforesaid judgment is that the injury inflicted is sufficient to cause death in the ordinary course of nature, but this part of enquiry is purely objective and inferential and is nothing to do with the intention of the offender. The manner of occurrence, the weapon used by the appellant and the receipt of injury leads no doubt that the prosecution has proved that the offence committed is murder under Section 300 of IPC. It doesn't matter that there was no intention to cause death or to cause an injury that is sufficient to cause death in the ordinary course of nature. The argument that the offence punishable under section 302 of IPC is not made out against the Appellant No.1 Lala cannot be accepted, as the injury with sharp aged weapon was caused on the head of
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the deceased even when the deceased was not aggressor. Still further, the deceased and his companions were not proved to be armed with any weapon, therefore, the deceased and his companion cannot be said to be aggressors in respect of which the Appellant No.1 Lala can have right of private defence. There is no incriminating circumstance to held Appellant No.1 Lala guilty for the offence punishable under Section 304 - I of IPC, as there is no evidence of sudden fight and the heat of passion. The appellant has hit the deceased with the sharp aged weapon on his head, therefore, it is not the case whereby the conviction of Appellant No.1 Lala can be converted into the one punishable under Section 304 Part I of IPC.
28. The arguments of Shri Datt, that the statement of the doctor that the injury on the head was the cause of death, is not sufficient to convict the Appellant No.1 Lala for an offence punishable under Section 302 of IPC. as there is no evidence such injury was sufficient in ordinary course of nature to cause death. We find that the plain reading of the postmortem report will not advance the argument raised. The injury on the head of the deceased is by sharp aged weapon which led to hemorrhage, shock and death. Mere fact that doctor has not deposed such injury to sufficient to cause death in ordinary course of nature would be raising an argument to an illogical end, as the injury on the head with sharp aged weapon led to excessive bleeding leads to no other inference that the death was caused by the injury inflicted by the Appellant No.1 Lala. For appreciating the evidence, it is not necessary that the words of statute
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needs to be reproduced. It is the cumulative reading of the statement which is relevant to determine whether an offence punishable under Section 302 of IPC is made out. It is in objective and inferential enquiry falling in test Fourth of Virsa Singh's judgment. We do not find that there is any other factor which comes to the rescue of Appellant No.1 Lala in support of the argument raised. The present appeal, so far as it relates to Appellant No.1 Lala is dismissed.
29. However, in respect of Appellant No.2 Anil, we find that the incident happened without any premeditation. The deceased Ramshiromani Singh was passing in front of the house of the accused. It was a normal agricultural activity. May be, there was enmity between the two groups on account of donations relating to festival of Holi, but the fact remains that there was no immediate provocation which infuriated the occurrence between the parties. The role ascribed to the Appellant No.2 Anil in the statements of the prosecution witnesses is of exhortation to Appellant No.1 Lala to the effect that the deceased and his family should not go scot-free. Such exhortation can be seems to cast the net wide. The Appellant No.2 Anil was armed with Lathi, therefore, he was not possessed any deadly weapon. He is attributed with Lathi blows on the non-vital parts of the witnesses; therefore, the conviction of the Appellant No.2 with the aid of Section 34 of IPC is not maintainable. Consequently, the conviction of Appellant No.2 Anil @ Yadavendra Singh is set aside. He is acquitted of an offence punishable under Section 302 of IPC and
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convicted for the role attributed to him of giving Lathi blow under Section 323 of IPC with the sentence as given by the learned trial Court, as the injury caused by him are not grievous in nature. The present appeal so far as it relates to accused/Appellant No.2 Anil @ Yadavendra Singh is allowed in part.
30. In respect of appellant/Mahendra, he has been found guilty for an offence punishable under Section 323 of IPC, although he has not taken a plea of private defence, but he has been convicted for the role attributed to him in the scuffle allegedly taken place on the date of occurrence. We do not find any reason to interfere with the finding of conviction returned by the learned Trial Court. However, keeping in view the fact that accused/appellant - Mahendra Singh has been attributed only simple injury on the person of injured witness Yogendra Singh, we modify the sentence imposed upon him to that already undergone. He is on bail. His bail bonds are discharged.
31. In view of the aforesaid findings, the appeal filed by accused/Appellant No.1 Lala @ Vishnupratap Singh fails and is hereby dismissed and the appeal filed by accused/Appellant No.2 Anil Singh @ @ Yadavendra Singh is partly allowed; he is convicted for an offence punishable under Section 323 of IPC and sentence to the period already undergone by him. He is on bail. His bail bonds are discharged. He be set at liberty, if not required in any other case.
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32. The appeal filed by the appellant Mahendra is also allowed in part and he is convicted for an offence punishable under Section 323 of IPC. We modify the sentence imposed upon him to that already undergone. He is on bail. His bail bonds are discharged. He be set at liberty, if not required in any other case.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
Anchal