Gauhati High Court
Page No.# 1/22 vs The State Of Assam And Anr on 23 August, 2022
Page No.# 1/22
GAHC010022642016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./209/2016
MD FARIUDDIN AHMED and ANR
S/O LATE RAUFATUDDIN AHMED, R/O VILL. NO. 1 BALIJAN, POST OFFICE
MARANGI, P.S. GOLAGHAT, IN THE DIST. OF GOLAGHAT, ASSAM.
2: MD. JULFIKAR ALI @ MAINA
S/O HARUSONA ALI
R/O VILL. NO. 1
BALIJAN
POST OFFICE MARANGI
P.S. GOLAGHAT
IN THE DIST. OF GOLAGHAT
ASSAM
VERSUS
THE STATE OF ASSAM and ANR
2:MD. MUJIBUDDIN AHMED
S/O LATE MUHIBUDDIN AHMED
R/O VILL. NO. 1
BALIJAN
P.O. MARANGI
P.S. GOLAGHAT
IN THE DIS.T OF GOLAGHAT
ASSAM
Advocate for the Petitioner : MR.B TANTI
Advocate for the Respondent :
BEFORE Page No.# 2/22 THE HONOURABLE MR. JUSTICE N KOTISWAR SINGH THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Appellants :Mr. DK Bhattacharyya, Advocate For the Respondents : Ms. S Jahan, Addl. PP, Assam Date of Hearing : 04.08.2022 Date of Judgment : 23.08.2022 JUDGEMENT & ORDER (CAV) (A.D. Choudhury, J) Heard Mr. DK Bhattacharyya, learned counsel for the appellants. We also heard Ms. S Jahan, learned Additional PP, Assam appearing for the State respondent. Though notice was served, none appears for the respondent No. 2.
2. By the impugned judgment and order dated 04.06.2016 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 152/2010, the two appellants are convicted under Section 302/34 IPC and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each, in default, to undergo simple imprisonment for one month each.
3. By filing the present appeal, the appellants have assailed the said judgment and order. The prosecution case, in nutshell, is to the effect that accused/ appellant No. 1, who was with accused/ appellant No. 2 called the deceased (father of the informant) to go to the house of appellant No. 1. When the deceased (father of the informant) started proceeding then the two appellants assaulted him. According to the version narrated in the FIR, the accused/ Page No.# 3/22 appellant No. 1 asked the accused/ appellant No. 2 to finish the deceased immediately. Thereafter, the accused/ appellant No. 2 inflicted the injury in chest of his deceased father of the informant with a spear and soon after the deceased fell down on the ground and died.
4. On such information being lodged before the Numaligarh Police Out post, NRL O.P. GDE No. 351 dated 15.07.2010 was registered and same was forwarded to the Officer-in-Charge of Golaghat Police Station for registering a case and accordingly, Golaghat P.S. Case No. 355/2010 under Section 302/34 IPC was registered on the even date. On completion of investigation, the Investigating Officer had submitted the charge-sheet against the appellants. On the basis of such charge-sheet, the learned Sessions Judge had framed charges under Sections 302/34 IPC against the appellants. Since the appellants had pleaded not guilty, the matter went up for trial.
5. During the trial, prosecution had examined as many as 10 witnesses to bring home the charge framed against the appellants. In their statement recorded under Section 313 Cr.P.C., the accused/ appellants had denied all the incriminating circumstances put to them. However, the defence side did not adduce any evidence.
6. Upon conclusion of the trial, the learned Sessions Judge had passed the judgment and order under challenge dated 04.06.2016, convicting the appellants under Section 302/34 IPC and sentencing them as stated hereinabove.
The Prosecution witnesses:
7. PW1 (the informant), and PW4 are the sons of the deceased victim and prosecution examined them as the eye witnesses. PW5 is the wife of the Page No.# 4/22 deceased victim and she was also examined as eye witness. Another eye witness as per prosecution story is PW7, who is the nephew of accused/ appellant No. 1, Md. Fariuddin Ahmed and deceased, Mohemuddin Ahmed. He is also related to accused/ appellant No. 2 and they are first cousin (son of his father's sister).
8. The prosecution also projected PW8 as an eye witness. Both Accused/ appellant No. 1 and deceased are maternal uncle of the PW8, however, she was declared hostile.
9. PW6 is a villager, PW2 is son-in-law of the victim, who reached the place of occurrence after the incident. PW9, PW10 and CW1 are the I/Os and the PW3 is the doctor, who conducted the post mortem examination.
10. Let this court now first consider the testimony and depiction of the eye witnesses, before going through the other witnesses.
11. PW1, who is the son of the deceased and informant, deposed that while his father was sitting on the front veranda, appellant Fariduddin called him and when the deceased father of the informant reached the agricultural field at the side of the enclosed yard of Fariuddin, Faridudding and Julfique Ali alias Maina (hereafter referred to as appellant No. 1 and appellant No. 2 respectively) started beating the deceased and the PW1 rushed to the spot, which was about 40 meter away from where he was standing. While he was running, he saw appellant No. 1 giving a spear to appellant No. 2 and asked appellant No. 2 to kill the victim. Then the appellant No. 2 inflicted the blow on the chest of the deceased with the spear and the spear pierced through the chest from right to left. Then the deceased fell down on the ground and passed away. According to him, PW4 and PW5 also reached the spot. He further Page No.# 5/22 deposed that the appellant No. 2 ran way taking the spear along. The spear was flat and long and was fitted with a bamboo handle. The tip of the spear was flat, pointed and shiny. The appellant No. 2 took the spear along and fled away. Thereafter, police came as somebody informed police about the incident and the dead-body was taken to police station and on the following day i.e. on 15.07.2010, ejahar was lodged by him. He proved the ejahar and his signature.
During cross-examination, he deposed that at the time of incident, he was standing on the Veranda and when he reached the place of occurrence, he saw his father was falling and he grabbed him. During cross-examination, he deposed that about two hours prior to the incident, two appellants took away his father's tractor's handle. He further deposed that appellant No. 2 struck his father with the spear before they could reach near his deceased father.
12. PW4, who is another son of the deceased also deposed that his mother, deceased father, elder brother, one Mulimuddin Ahmed, Nazmi Begum and his wife Rumi Begum were at home and after having meal all were sitting in the Veranda. He also deposed that appellant No. 1 called his father and his father went out. He also deposed appellant No. 1 assaulted his father with a handle of spear and beat his father with an iron spear. Witnessing the incident, he ran to the place of occurrence and when he reached near his father, the appellant No. 1 gave the spear to the appellant No. 2 and asked appellant No. 2 what for he was awaiting and asked him to kill the victim. He also deposed that appellant No. 2 struck on the chest of the deceased with spear and the spear pierced through the chest. His father fell down. He deposed that at that time, father of appellant No. 2, one Sarusuna Ali came and asked appellant No. 2 what he had done and thereafter pulled out the spear from the chest of the deceased and left the place taking the appellant No. 2.
Page No.# 6/22 During his cross-examination, he reaffirmed that appellant No. 1 had beaten his father with handle of the spear and thereafter appellant No. 2 had stabbed his father in the chest with the pointed end of the spear. He denied the suggestion of the defence that he did not tell the police the fact of giving the spear to appellant No. 2 by appellant No. 1 and that the appellant No. 1 told the appellant No. 2 to kill his father. He admitted that in the morning, on which incident took place, an altercation took place between his deceased father and appellant No. 2 in the field. He deposed that appellant No. 2 worked as ploughman for appellant No. 1.
13. Another eye witness PW5, the wife of the deceased deposed that appellant No. 1, who is the elder brother of the deceased asked the deceased from enclosed yard to bring the handle of a power tiller. The handle of the said power tiller belongs to the family of the deceased and it was taken by the appellant No. 1. Thereafter, when her husband went near courtyard of the appellant No. 1, the appellant No.1struck on the head of her husband with the handle of the spear, then her husband raised hue and cry and they went there in a run. When they reached near her husband, appellant No. 1 gave the spear to appellant No. 2 then appellant No. 1 told appellant No. 2 to finish her husband. Thereafter, appellant No. 2 stabbed her husband on the chest with the spear and the spear pierced through the chest and back. Thereafter, appellant No. 2 pulled out the spear from her husband's chest and left.
During cross-examination, she deposed that when her husband went to the place of occurrence, there were about six persons there. She further deposed that she and her sons reached the place of occurrence along with her. She also deposed that
14. PW7 deposed that appellant No. 1 and deceased are his maternal Page No.# 7/22 uncle and appellant No. 2 is his cousin (son of his father's sister). He deposed that on 14.07.2010 at 2 p.m., at the time of incident he was having rice at his residence after returning from agricultural field. He heard hue and cry raised by Ashadul (PW4). He saw his deceased victim (maternal uncle) was carrying a spear in his hand. PW4 had a lathi in his hand. Deceased Mahemuddin chased appellant No. 1. Appellant No. 1 entered his own enclosed yard and hurled bricks towards the deceased. About that time, the appellant No. 2 arrived there and stabbed the deceased on the chest with spear. Then deceased fell into a pond. Thereafter PW5 and he (PW7) lifted the deceased from the pond. While the deceased was in his lap, the deceased breathed his last. He further deposed that there had been dispute between two parties in connection with a tractor.
During cross-examination, he deposed that about 20 days prior to the incident, the deceased had driven a tractor over the land belonging to appellant No. 1 and a result of which the ridges on the agricultural field of appellant No. 1 got damaged. Then appellant No. 1 asked deceased not drive tractor along the way. The appellant No. 1, according to PW7, told the deceased that if deceased would still drive tractor along that way, the deceased would have to repair the ridges. On this issue, disagreement arose between the two parties and PW4 and the deceased said that they would assault appellant No. 1. They also (deceased and PW4) said that they would see, who would come to rescue appellant No.1. He further deposed during cross-examination that about 15 days prior to this incident, deceased paid appellant No. 2 money in advance for ploughing his land with tractor. However, appellant No. 2 returned the money to the deceased and started ploughing the appellant No. 1's field instead. He also deposed, during cross-examination, that on the day of occurrence, deceased and PW4 assaulted appellant No. 2. He also deposed, during cross, that just before the incident, the Page No.# 8/22 deceased and PW4 chased appellant No. 1 towards the house of appellant No. 1 saying that they would finish appellant No. 1 on that day. In order to save himself, appellant No. 1 entered the enclosed yard of his house. The deceased and PW4 did not enter the enclosed yard. Thereafter, both the parties hurdled stones and bricks at each other. Thereafter, appellant No. 2 came from inside. Appellant No. 2 brought a stick and then deceased and PW4 assaulted appellant No. 2, then appellant No. 2 moved backward and deceased and PW4 chased him. Then appellant No. 2 reached the fence near the pond. At that point of time appellant No. 1 was at a distance inside his enclosed yard.
15. PW8, Musstt. Anjuma Begum was declared hostile. She deposed that deceased and appellant No. 1 are her maternal uncles. She deposed that the incident took place at about 2/ 2.30 p.m. on 14.07.2010 near the house of appellant No. 1. She further deposed that one hour before deceased had a scuffle with appellant No. 2 over an issue of missing of a handle of power tiller belonging to appellant No. 1. She further deposed that such incident was informed to her by one Jyotsna Begum, her elder sister. However, the next incident i.e. the final assault happened in her presence. She further deposed that on 10/ 15 days prior to the incident the deceased drove tractor over the land belonging to appellant No. 1, appellant No. 1 asked him to repair the ridges and quarrel took place between appellant No. 1 and deceased as the ridge had not been repaired. She further deposed that her house is near the appellant No. 1's house. She also deposed that hearing hue and cry on the day of occurrence, she came out of her house. She saw the appellant No. 2 assaulting the deceased with a long stick but she could ascertain what type of stick it was. She also deposed that deceased was stabbed in the chest with that. She further deposed that appellant No. 2 pulled that weapon from the chest of deceased Page No.# 9/22 and went away.
16. In view of such deposition, though she had implicated appellant No. 2, she was declared hostile by the prosecution and cross examined her.
During cross-examination by prosecution, though she was confronted that she has not stated those facts before the police, she had denied the same. During cross by the defence, she deposed that the agricultural field in which the quarrel took place between appellant No. 2 and deceased in connection with a handle of tractor about half an hour prior to the incident, is more than half a kilometer away from the place of occurrence.
17. PW2, who is son-in-law of the deceased is not a very vital witness for the present case for the proof of the incident. However, he deposed that when he reached the place of occurrence he found a lot of people at the place of occurrence and he was present when police examined the dead body. He found that his father-in-law was lying dead near the pond of appellant No. 1 and saw injury on the chest of the deceased.
18. PW6, Md. Nur Ali deposed that he saw from his Jongighor (a house build on a raised platform) the appellant No. 1, appellant No. 2 and deceased from a distance of about half a kilometer. He also heard hue and cry. After hearing hue and cry, he came out from the Jongighor. He further deposed that thereafter they left the place, after one hour he could learn about the death of deceased.
During cross-examination, he deposed that he saw that PW4 and the deceased were scolding appellant No. 2. Thereafter, they left the place.
19. PW3 is the Doctor, who conducted the post mortem upon the Page No.# 10/22 dead body and found the following injuries:
"Perforated injury of the chest wall is found. The entry wound is located in right side of the chest over the middle clevicular bone at the 4th intercastal space.
The exit wound is located in the left side of the posterior aspect of the chest wall, medial to the posterior axillary line at the level of the 6th intracranial space."
When the seized weapon was shown to PW3, PW3 expressed his opinion that the injury may not be caused by the said weapon. He further opined that cause of death is due to hemorrhage and shock as a result of perforated injury.
20. PW9, PW10 and CW1 were investigating officers during the investigation of the offence. PW9 was the Officer-in-Charge of Numaligarh police outpost. He was on leave on the date of incident and accordingly SI, Uttam Kr. Tamang, CW1 started the investigation on receipt of the information of the incident. He described how CW1 carried out the investigation. He also deposed regarding the registration of the FIR and particulars given in the FIR. He deposed that he also examined the complainant.
During cross, he deposed that he searched the houses of appellants but did not find the appellants. He further deposed that on 23.07.2010 at 12.30 p.m., appellant No. 2 along with two persons namely Balujan Ali and Nijamuddin came to the outpost, identified himself as the murderer in this case. He handed over a bamboo pole with pointed end used in carrying sheaves of paddy on the shoulder, with which he had killed the victim. Then the PW9 seized the same in presence of witnesses.
During cross-examination, he deposed that when he seized the weapon surrendered by the appellant No. 2, he did not make any recovery memo nor did make any GD entry. He deposed that PW1 did not say before him that Page No.# 11/22 appellants had made assault with the spear. He testified that rather PW1 stated that the assault had been made with the bamboo pole with pointed ends used in carrying sheaves of paddy on the shoulder. During cross, he testified that PW1 did not tell him that the spear had been given to Maina (accused/ appellant No. 2).
21. PW10 is another police person, who accompanied CW1 to the place of occurrence and he produced the extract copy of GD No. 318 dated 14.07.2010, which was created on the basis of information received from Md. Salamuddin Ahmed, the VDP Secretary of the village No. 1 Balijan. Beyond that, he expressed that he has no personal knowledge about the incident.
22. The Investigating Officer, Sri Uttam Tamang appeared and deposed as CW1. He deposed regarding different stages of investigations and further deposed that he found the dead body near a pond alongside ridge in an agricultural field. He also deposed that he prepared a rough sketch map and exhibited the sketch map as Ext.1. He did inquest of the dead body and sent the body for post mortem examination. He deposed that he learnt from the witnesses that the deceased and appellant No. 1 are brothers, that they had quarreled regarding handle of power tiller, that the appellant No. 1 and his ploughman appellant No. 2 killed the deceased. When he went to the houses of the appellants, he did not find them there and did not find the spear used in the murder. In the meantime, the I/O completed the investigation.
During cross, the I/O was confronted with the statement made by PW8 (hostile witness) under Section 161 Cr.P.C., to which he admitted that she has made such statements before him. During cross, he further stated that he could not find the spear used in the incident.
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23. Based on the aforesaid evidence brought on record by the prosecution side, the learned Sessions Judge had convicted the appellants under Sections 302/34 IPC and sentenced them as stated hereinabove.
24. The learned counsel for the appellants Mr. Bhattacharyya submits that there is no material evidence against the appellant No. 1. The depictions made by the PW1, PW4 and PW5, who were two sons and wife of the deceased and who are interested witnesses, are totally different from the depiction and deposition of PW7, who is an independent witness. He submits that from the deposition of PW7, it is crystal clear that the deceased and PW4 were the aggressor and the incident took place near the house of the appellant No. 1. He further submits that from the material available on record and the deposition of the eye witnesses including PW1, PW4 and PW5, who were interested witnesses, it is crystal clear that prior to the actual incident a quarrel took place between both the parties and there were grave and sudden provocation on the part of the victim and PW4 and the appellant No. 2 had to the act in his self defence as it is crystal clear that the appellants and PW4 were aggressors.
25. It is also submitted by Mr. Bhattacharyya, learned counsel for the appellants that there is no evidence to convict the appellant No. 1 under Section 302 IPC rather it is crystal clear from the evidence of different prosecution witnesses that when the quarrel started, he entered into his own enclosed yard and the incident took place near a pond away from his enclosed yard. Therefore, he cannot be convicted under Section 302 IPC by taking recourse to the provision of Section 34 IPC.
26. The learned Counsel further argues that from the medical witness, it is crystal clear that the Doctor opined that injury could not have been inflicted by the weapon used in committing the offence and therefore, the Page No.# 13/22 depiction of PW1, PW4 and PW5 are liable to be rejected. In support of his contention, he relies on a judgment of the Hon'ble Apex Court in Kartarey and Ors. Vs The State of Assam reported in (1976) 1 SCC 172.
27. He further submits that the evidences of PW1, PW2 and PW3 are not at all reliable for the reason that those three witnesses are having different contradictory version regarding the occurrence. He further submits that from the prosecution witnesses more particularly from the deposition of PW1, PW2 and PW5 and the deposition of PW7 two versions are depicted and the version depicted by PW7 is more beneficial to the appellants and therefore, the court should rely on the same. The said version of PW7 clearly shows that the appellant No. 1 cannot be fastened with the liability under Section 302 IPC taking recourse to the Section 34 IPC inasmuch as the appellant No. 2 had done the act due to grave and sudden provocation and for self defence, which is crystal clear from the unshaken testimony of PW7. In support of his contention, he relies on a decision of Hon'ble Apex court in Harchand Singh and another Vs. State of Haryana reported in (1974) 3 SCC 393.
28. The further contention of the learned counsel is that the weapon used in committing the offence and as stated to have been deposited by the appellant No. 2 cannot be accepted as there is no record of such weapon being produced in the police station inasmuch as the same is in violation of the provision of Rule 53 (d) of Assam Police Manual, which mandates for recording of such recovery and to create GD entry.
29. Per contra, Ms. S Jahan, learned Additional Public Prosecutor, Assam submits that from the deposition of PW1, PW2, PW5, PW7 and even form the deposition of the hostile witness PW8, it has been established beyond reasonable doubt that on the day of occurrence there was a quarrel between Page No.# 14/22 the two parties and on the instigation of appellant No. 1, the appellant No. 2 inflicted the fatal blow and by the Doctor's evidence it has been proved that the deceased had died due to hemorrhage and shock for the reason of the injury. Thus, it is established that none other than the appellant No. 2 inflicted the fatal blow on the deceased. There are clear overt acts on the part of appellant No. 1 to establish the common intention of appellant No. 1 to kill the deceased and it is established beyond reasonable doubt from the deposition of unshaken evidences of the prosecution witness that it is the appellant No. 1 who had instigated the appellant No. 2 to kill the deceased and the appellant No.1 actively participated in beating the deceased. Therefore, the learned court below had rightly convicted the appellant No. 1 under Section 302 IPC taking recourse to the provision of Section 34 of IPC.
30. We have considered the submissions advanced by the contesting parties. We have also perused the evidence on record.
31. In the present case in hand, it is proved beyond doubt that incident took place on 14.07.2010 at around 02:00 PM near the house of accused/ appellant No. 1. It is also established beyond doubt that the death of the deceased was homicidal in nature from the inquest report i.e. Exhibit-3 and the post mortem report i.e. Exhibit-2.
32. The deposition of eye witnesses i.e. PW-4, PW-5 and PW-7 firmly establishes that a quarrel had taken place between the family of the deceased, more particularly the deceased and the PW-4 and accused/ appellant No. 1 and accused/ appellant No. 2 regarding handle of a tractor and also for ploughing the tractor by the accused/ appellant No. 2 damaging the ridge of the field belonging to the deceased. From the aforesaid PWs, it is also established that even immediate prior to the incident, there were quarrel between the appellants Page No.# 15/22 and victim and Pw4 and both the parties threw bricks etc., at each other and the victim and appellant No.2 carried spears in their hands. Such fact has been established from the evidence of PW-7. His testimony remained unshaken.
33. Joint culpability under Section 34 IPC needs an existence of a common purpose to commit a criminal act in pursuance of a common goal, shared by all members of that group. Prior concert or a meeting of minds as well as participation of all the members of group are necessary conditions. The activities performed by various members of a group may range in degree but they must all have been motivated by the same common object. The act may always not be overt act but common intention is sine-qua-non for application of Section 34 IPC. In the case in hand, there is no evidence to show that there was any intention or meeting of mind or a common purpose to commit the criminal act as had happened in the present case.
34. Though the PW-1, PW-4 and PW-5, the two sons and the wife of the deceased deposed that the accused/ appellant No. 1 instigated and asked the accused/ appellant No. 2 to finish up the deceased, however, the PW-7, who is an independent eye witness clearly deposed that there was no such word uttered by the accused/ appellant No. 1 and that accused/ appellant No. 1 was inside his courtyard and the ultimate incident took place near the pond of the house of the accused/ appellant No. 1.
35. The PW-8, who was declared as hostile though she had clearly depicted the act of accused/ appellant No. 2 inflicting the fatal blow. She also depicted the same story as depicted by PW-7 and both were eye witnesses to the occurrence. Law is well settled that hostile witnesses' credible evidence can be relied on for just determination in as much as in the case in hand the deposition of PW8 find corroboration with the deposition of PW 7. Her Page No.# 16/22 statement regarding quarrel and place of occurrence, also finds corroboration with the testimony of PW2 and CW1. Thus there are two stories depicted by two sets of eye witnesses and one set of eye witness can be said to be interested eye witnesses though their evidence cannot be thrown out lightly.
36. In the aforesaid backdrop of depositions and evidences, this Court is of unhesitant view that the joint culpability of the appellant No.1 relating to common intention/goal and meeting of mind are not available. Accordingly, this Court is of the opinion that the learned Trial Court has committed wrong in convicting the accused/ appellant No. 1 under Section 302 applying the Section of 34 IPC. Accordingly, in our considered opinion, the accused/ appellant No. 1 is liable to be acquitted giving him benefit of doubt.
37. However, there are clinching evidences from the eye witnesses, more particularly, the PW1, PW4, PW5, PW7 and Hostile PW8 that the accused No.2 inflicted the fatal blow in the Chest of the deceased victim and the same has been proved beyond reasonable doubt.
38. Therefore, the next question that would require our consideration in the present case is as to whether the accused/ appellant No. 2 had acted in exercise of his right of private defence and inflicted the fatal blow and therefore is entitled for protection of Section 96 of the IPC.
39. Section 96 of the IPC provides that nothing is an offence which is done in exercise of right of private defence. For proper appreciation, this Court considers it to be necessary to quote the Section 97 of IPC, which lays down right of private defence of body and property which reads as follows:-
"97. Right to private defence of the body and of property.-Every person has a right, subject to the restrictions contained in section 99 to defend:
First.- His own body, and the body of any other person, against any offence affecting the Page No.# 17/22 human body;
Secondly.-The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
40. In this regard, the Section 99 is also relevant, which provides that there is no right of private defence where there is time to have recourse to protection of public authorities. It is also established proposition of law that right of private defence cannot extend to inflicting more harm than is necessary for the purpose of defence. While relying on various previous decisions and deliberating upon the right of private defence, the Hon'ble Apex Court in case the Darshan Singh vs State of Punjab reported in (2010) 2 SCC 333 at paragraph 58 laid down certain principles. The same may be quoted below for the purpose determination of the present lis.
"58. The following principles emerge on scrutiny of the following judgments:
(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.
(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.
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(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."
41. Now let this Court consider the factum of the present case on the basis of the settled principle of law as discussed hereinabove.
42. From the evidence of PW-1, PW-4, PW-5, PW-6 and PW-7, it is clear that prior to the final act of inflicting the fetal injury, there was scuffle between the quarrelling parties. It is further established that the issue arose prior to 15/20 days of the incident and aggravated on the date of occurrence from morning. The interested witness i.e. the relatives of the deceased themselves admitted that a quarrel has been going on between the accused/ appellant No. 1 and the deceased, the two brother, since last 20 days and on the date of occurrence it was further aggravated. The other witnesses like PW-6 though did not witness of the final occurrence also deposed that there had been quarrel on the issue of tractor and damaging the ridges of the field of the deceased. The unshaken evidence of PW-7 also shows that the deceased was having a spare in his hand and both the parties threw bricks, stones etc at each other. The evidence of PW-7 further affirms that the deceased chased the accused/ appellant No. 2 near to the pond and then only the accused/ appellant No. 2 inflicted the fettle blow upon the deceased.
43. However, the aforesaid evidence by no means establishes that there could have been apprehension on the part of accused/ appellant No. 2 that there was a contemplation on the part of the deceased to kill him and that such an act if the appellant would not have exercised for his private defence, it would have finished his life. Though there are material evidence on record as Page No.# 19/22 discussed hereinabove that the deceased was carrying a spare in his hand and they went to the courtyard of the accused/ appellant No. 1 and chased the accused/ appellant No. 2, there is no material available on record to show that any attempt was made or any overt act was there to have a reasonable apprehension that the deceased would use the spare. The evidence available on record is not sufficient to show that deceased had suddenly confronted the accused with the weapon in his hand and there was no wave to avert the threat of life then to kill the deceased.
44. In view of the aforesaid, this court is of the considered opinion that this is not a fit case where the right of private defence was available to the accused/ appellant No. 2. The accused/ appellant No. 2 has also failed to explain as to why it became necessary to exercise right of private defence and hit the deceased in the vital part of the body, which lead to the death of the deceased victim, including in his statement recorded under 313 Cr.P.C.
45. Accordingly we are of the considered opinion that none of the condition anticipated in Darshan Singh (supra) are available in the present case, though the learned counsel for the appellant tried to impress upon us that the accused/ appellant No. 2 had to use the weapon for the right of private defence.
46. Though we have held as above, we have also found as discussed herein above that there are sufficient evidences available on record to show that immediately before the occurrence, there was a quarrel between the accused/ appellant No. 1, accused/ appellant No. 2, deceased and PW-1. There are sufficient materials on record which shows that the deceased had sufficiently Page No.# 20/22 provoked the accused person. The evidence of PW-1, PW-4, PW-5, PW-6 and PW-7 clearly testifies that a quarrel took place between the parties. The deposition of PW-6 clearly depicts that the deceased had chased the accused/ appellant No. 2 and also went near the residence of the accused/ appellant No. 1 holding a spear in his hand. The PW6 also deposed that he also saw in the earlier part of the day and before the actual occurrence, the quarrelling parties had a fight in the field. The PW7 also deposed that the deceased chased the appellant No.2 to the fence near the place of occurrence and the deceased was holding a spear.
47. From the above evidences, it is clear that there was grave and sudden provocation from the deceased upon the appellant No.2, immediately before the occurrence and therefore, it cannot be nullified that the appellant No. 2 has acted under a heat of passion having lost of self control.
48. The offence of culpable homicide amounting to murder is explained under Section 300 of the IPC. The Exception 4 to Section 300 of the IPC provides that the culpable homicide which would not amount to murder. The Exception 4 is quoted herein below:-
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
49. After consideration of the materials available on record and the provisions of Section 300 of IPC more particularly the Exception 4, we are of the opinion that the present case would come under the Exception 4, so far the same relates to accused/ appellant No. 2.
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50. Based on the materials available on record, it leads to an unhesitant conclusion that in the case in hand, the accused acted without premeditation. The deceased can be said to be an aggressor in the case as materials are available beyond doubt that the deceased went near by the house of the accused/ appellant No. 1 then chased the accused/ appellant No. 2 to a pond belonging to the accused/ appellant No. 1 and the actual occurrence took place therein. The fatal blow is also a single blow. Therefore, in the totality of evidences, we are of the considered opinion that being provoked by the deceased, the accused/ appellant had acted in the heat of a moment having lost his self control. We have also considered the fact the accused went to the police station and surrendered before the police.
51. From the materials, we are of the considered opinion that though it cannot be said that the accused/ appellant No. 2 did not have knowledge that it would cause death to the deceased in the manner he had used the weapon, however, the accused/ appellant No. 2 did not had the intend to cause death to the deceased. For the reasons stated herein above, this Court is of the considered opinion that the case of the accused/ appellant No. 2 would come under Section 304, Pt-II of IPC. We accordingly set aside the conviction of the appellant under Section 302 of the IPC and convict him under Section 304 Pt-II of the IPC and accordingly the accused/ appellant No. 2, namely, Md. Julfikar Ali @ Maina is awarded sentence of 8 years of Rigorous Imprisonment. The fine imposed by the learned Sessions Judge, would however, remain unaltered. The period of jail sentence already undergone by the appellant shall stand set off and reduced from 8 years of Rigorous Imprisonment awarded to the appellant by this Court.
52. For the reasons discussed hereinabove, accused/ appellant No. 1, Page No.# 22/22 namely, Md. Fariuddin Ahmed is acquitted giving him benefit of doubt. As the accused/ appellant No. 1, Md. Fariuddin Ahmed was released on bail in view of order dated 27.09.2016 passed in IA (Crl) No. 226/2016 and in view of his acquittal his bail bond stands released.
53. The appeal is partly allowed. Send back the LCR.
JUDGE JUDGE Comparing Assistant