Delhi District Court
28. In Dev Narain vs State Of Up Air 1973 Sc 473), The on 31 March, 2015
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL SESSION JUDGE03
SOUTH EAST, SAKET COURTS
NEW DELHI
IN THE MATTER OF
SESSIONS CASE NO. 62/14
CASE ID No. 02406R0285652013
FIR NO. 221/13
POLICE STATION: JAITPUR
UNDER SECTION: 304 IPC
STATE
Versus
HUSAN BANO
W/o Late Sh. Ashraf Ali
R/o House No. A350, Gali No. 6, Khadda Colony, Jaitpur, New Delhi
DATE OF INSTITUTION: 21.09.2013
DATE OF RESERVING ORDER: 26.03.2015
DATE OF DECISION: 31.03.2015
SC NO. 62/14 Page No. 1 of 34
JUDGMENT
CASE OF PROSECUTION:
1. This unfortunate case is a result of repeated incestuous assaults on a minor girl by none else but her own father for almost 2 years prior to the date of incident despite stiff resistance and objections by the victim and other family members. When these repulsive acts of the deceased were disclosed by the victim to her mother who is the accused before this Court, the deceased even did not spare her and inflicted an extreme form of domestic violence upon her in anger and fractured her leg. Despite the outcry of his family, the deceased again allegedly raped the victim (his own minor daughter aged about 15 years) just 10 days before the date of incident finding her alone.
2. It is in this background that when on the date of incident i.e. 22.06.2013, the deceased was about to repeat his act of violating the victim despite her cries and forced himself upon her that the accused that is mother of victim could take it no more. On the one hand was her husband who had fathered her four children and was the sole bread earner of her family and on the other hand was her minor daughter SC NO. 62/14 Page No. 2 of 34 who he had been sexually exploiting for last about 2 years despite an outrage in the family, which daughter had threatened to kill herself in case the deceased (her father) does not stop his acts. Faced with this dilemma, the accused at the time of incident was compelled to intervene when she tried to stop her husband and free her daughter from his clutches which resulted in death of the deceased.
Before proceeding further, the case of the prosecution as put forward is traversed as under:
Facts:
3. Briefly the case of the prosecution is that the complainant Ms. 'H' (name withheld, the complainant being a minor and a victim of sexual assault) is the daughter of deceased Ashraf Ali originally belonging to village Sirsa, District Peelibheet, Uttar Pradesh. In the month of May 2012 deceased Ashraf Ali who was working in Delhi, went to his village and finding the complainant alone, he committed rape on her. The complainant brought the same to the notice of her mother accused Husan Bano who confronted the deceased on which, the deceased in a fit of anger even assaulted her, fracturing her leg and threatening to kill her in case the incident was disclosed to anybody. The SC NO. 62/14 Page No. 3 of 34 deceased thereafter left for Delhi. As per complainant, a lot of money was borrowed for providing treatment to her mother and hence, for the purpose of earning a livelihood, the complainant along with other family members also shifted to Delhi. In Delhi also the deceased Ashraf Ali used to sexually assault her whenever he got an opportunity. On 22.06.2013 at about 10.30 PM, when the deceased tried to sexually assault her, she raised alarm pursuant to which the accused and the deceased had a scuffle and the accused strangulated the deceased by her dupatta due to which he died.
4. The way in which the case unfolds, it is pertinent to discuss the sequence of events in detail so as to arrive at the truth. As per chargesheet, on 23.06.2013 at about 05.10 AM, the duty officer of PS Jaitpur received an information from the control room regarding a murder having been committed at Gali No 6, Khadda Colony, Jaitpur.
The duty officer entered the information in rojnamcha as DD No. 8 A and SI Mahesh Chand was informed telephonically to initiate the further course of action, who along with Ct. Sudhir reached at spot i.e. H No. A350, 1st Floor, Gali No. 6, Jaitpur Extn, PartII, Khadda Colony, New Delhi where one male dead body was found lying in a room in front of SC NO. 62/14 Page No. 4 of 34 the staircase. There was ligature mark on the neck of the deceased. The SHO along with the staff members also arrived there. The IO called up the crime team which inspected the scene of crime and clicked photographs. The accused Husan Bano, her son Aafaq Hussain and her daughter complainant 'H' were also present at the spot. The complainant reported the incident to the police.
In her statement to the police, the complainant narrated the story as in para no. 3 above and stated further that on 22.06.2013 at about 10.30 PM, her father came near her while she was sleeping on the floor and tried to open the knot of her salwar (lower). She raised alarm and shouted that she will kill herself today. Her mother and elder brother woke up and came inside. The accused however started pretending to be sleeping on the floor. Her mother and brother warned the deceased, in case he attempted his act. At this, out of anger the deceased stood up to beat the complainant but her mother and elder brother saved her and her mother accused Husan Bano sat on the chest of the deceased and pushed his neck down by her duppatta and her brother also caught hold of the deceased. The deceased tried hard to get hold of her but could not do so and after sometime the deceased stopped breathing and his body showed no movement. The complainant and her family members got scared, the SC NO. 62/14 Page No. 5 of 34 accused dropped the complainant at the house of her sister and instructed her not to disclose to anybody that her father used to commit rape on her and she will handle everything herself but the complainant came back home and narrated the incident to the police.
5. Since the offence u/s 304 IPC is exclusively triable by the Court of Sessions therefore, after supply of documents Ld. Metropolitan Magistrate committed the case to the Court of Sessions.
6. Primafacie a case u/s 304 IPC was made out against the accused. Accordingly, charge for the said offence was framed against the accused on 09.01.2014 by my Ld. Predecessor to which she pleaded not guilty and claimed trial.
7. Before appreciating the evidence, let me state in brief the deposition of prosecution witnesses. The prosecution has examined as many as 18 prosecution witnesses.
Public witnesses:
8. PW 1 Ms. 'H' is the complainant. In the Court the SC NO. 62/14 Page No. 6 of 34 prosecutrix deposed that on the intervening night of 22/23.06.2013 at about 10.30 PM, she was sleeping on the floor and her father was lying on the bed in the same room. Her younger brother Shadab Hussain and sister Muskan had gone to house of 'Mausi' in the same locality whereas her mother and elder brother Afaq Hussain were sleeping in the open veranda outside the room. Her father came down on the floor and started teasing her and attempted to open her kamarband and tried to commit rape upon her. She stated:
"mere saath ched khani shuru kar di aur mere saath rape karne ki koshish karne lage aur mera nada kholne ki koshish karne lage".
She raised alarm on which her mother woke up and came inside the room. When her mother intervened and tried to remove the deceased who was lying over the complainant, she was pushed away by the deceased. At that time, the deceased continued to attempt rape upon her. Her mother again tried to pull him, who was still lying over her by putting a 'dupatta' in his neck which was being resisted by the deceased and in the process, the 'dupatta' was tightened. His breathing stopped and he fell down. Thereafter, his brother came inside. She further deposed that her father attempted to commit rape on her at her native place in SC NO. 62/14 Page No. 7 of 34 May 2012 when her mother was living separately. She had narrated the incident to her mother, who when confronted the deceased was mercilessly beaten by him with a wooden stick therein fracturing her leg and also threatening her to kill in case the incident was disclosed to anybody. She further deposed that about 10 days prior to the incident, the deceased had again committed rape on her which she has informed her mother and told her that in case she has to live a life like this, she will end her life. The accused lodged protest with the deceased at which he had threatened and beaten her.
In her cross examination, she again deposed that on the fateful night, her father came near to her while she was sleeping and started touching her inappropriately and started raping her forcefully. She shouted and called her mother who when entered the room, the deceased was still raping her. Her mother firstly tried to remove him by pulling with her hands but could not succeed. On this, her mother tried to remove him with the help of her 'chunni' by putting the same around his neck and pulled him so as to remove him. Due to this pulling, the deceased got strangulated accidentally and died. She deposed that her mother tried to remove her father in order to save her and she had no intention to kill him.
SC NO. 62/14 Page No. 8 of 34
9. PW 2 Sh. Afaq Hussain is the son of deceased Ashraf Ali and brother of the complainant Ms. 'H'. In his testimony, he deposed that on the intervening night of 22/23.06.2013 at about 11 PM, Ms. 'H' was sleeping on the floor and his father was lying on the bed in the same room. His younger brother and sister had gone to their Mausi's place to watch TV and he himself and his mother were sleeping outside the room in the open varanda. He heard the shrieks of his sister Ms. 'H' and got up and went inside the room and saw that his father Ashraf Ali had died and there was a 'dupatta' around his neck. As the witness was not supporting the version of prosecution, he was cross examined by Ld. Additional PP for State.
During the cross examination by the Ld. Additional PP for State, the witness denied the suggestion that when he went inside room, he saw his father and mother were scuffling and during the process of scuffling, his mother had put a 'dupatta' on the neck of his father and pulled it which resulted in the death of his father due to suffocation.
The witness was not cross examined by Ld. Defence counsel despite the opportunity for the same being given to him. SC NO. 62/14 Page No. 9 of 34
10. Another public witness Sh. Ashfaq Ali brotherinlaw (Sadu) of the deceased has been examined as PW 8. He deposed that the deceased Ashraf Ali , his brother in law was having illicit relations with his daughter 'H'. They had also come to know about the sexual relation of the deceased with his daughter one year prior to the date of incident. Everybody in the family knew about this. They made efforts to solve the same. He and his wife used to bring the children of the deceased to their home. On 22.06.2013, younger son and daughter of deceased namely Shadab and Muskan were at his place and in the morning of 23.06.2013, they came to know that accused Husan Bano killed her husband by strangulation as he was committing sexual intercourse with his daughter.
This witness was also not cross examined by the Ld. Defence Counsel though the opportunity was given.
11. PW 9 Smt. Saira Bano is the sister in law of deceased and wife of PW 8 Sh. Ashfaq Ali. She deposed on the lines of deposition made by PW 8 and stated that they were aware of the sexual relation of the deceased with his daughter and they had made efforts to find SC NO. 62/14 Page No. 10 of 34 solutions. On 23.06.2013, she came to know that her sister killed her husband by strangulation as he was having sexual intercourse with his daughter.
The Ld. Defence Counsel opted not to cross examine this witness also despite opportunity for the same being accorded. Medical witnesses:
12. PW 4 is Dr. Piyush Sharma who conducted the postmortem on the dead body of deceased Ashraf Ali on 24.06.2013 between 12.20 PM to 1.20 PM. On examination, he found "a reddish abrasion of size 1 X 2 cms present over anterior midline of neck 8 cms below mentum, a reddish abrasion of size 6 X 2 cms was present over left lateral aspect of neck 5.5 cms from left mastoid , TIP and a reddish linear abrasion length 4 cms present on anterior aspect of middle one third of neck." the underlying muscles and lymph nodes were congested. Thyroid cartilage was fractured.
It was opined that the cause of death to his knowledge and belief was asphyxia due to strangulation. The doctor proved the postmortem report as Ex. PW 4/A. SC NO. 62/14 Page No. 11 of 34 The opportunity of cross examination was not availed by the Ld. Defence Counsel.
13. PW 10 is Dr. Akhilesh Raj who conducted the postmortem alongwith Dr. Piyush Sharma and noticed the injury as mentioned in the postmortem report Ex. PW 4/A and opined that the cause of death in this case was asphyxia due to strangulation.
In his cross examination, the doctor deposed that the said injuries were possible in strangulation by a 'chunni.'
14. PW 14 Dr. Praneet medically examined the patient Ashraf Ali on 23.06.2013 at 8.24 AM and declared him brought dead vide MLC Ex. PW 14/A.
15. PW 16 is Dr. Nisha Malik who medically examined the complainant Ms. 'H' on 23.06.2013 and prepared detailed MLC Ex. PW 16/A in which she opined that the hymen of the patient was found torn, however, no active bleeding or the tear was found.
Ld. Defence Counsel did not avail the opportunity to cross SC NO. 62/14 Page No. 12 of 34 examine the witness.
Expert witness:
16. PW 17 is Dr. Lingaraj Saho, Senior Scientific Officer, Delhi. He proved on record FSL report Ex. PW 17/A. The witness was not cross examined by defence despite the opportunity for same being given.
17. At this stage, it is noted that PW 3, PW 5, PW 6, PW 7, PW 11, PW 12, PW 13, PW 15 & PW 18 are all formal witnesses. Taking into consideration the fact that most part of the prosecution case is not disputed, I do not find it necessary to go into the details of the testimony of the above formal witnesses.
18. After the completion of prosecution evidence, the accused was examined U/s 313 Cr. PC wherein she denied the entire incriminating facts coming up against her and claimed innocence. She stated that on the night of incident the deceased was attempting to commit rape upon her minor daughter. After hearing her cry, she woke SC NO. 62/14 Page No. 13 of 34 up and saw that her husband was committing rape upon her daughter. Seeing the sudden incident, she immediately tried to rescue her minor daughter from the clutches of her husband and during that process, she put her 'dupatta' on his neck with intention to separate him with a view to stop the commission of crime and during that process, he died accidentally. She further stated that she had no intention to kill him and it was a sudden incident.
19. I have heard the rival contentions raised on behalf of Sh. Irfan Ahmad, Ld. Additional PP for State and Sh. Jitender Tyagi, Ld. Counsel for accused at length and also carefully considered the material on record.
20. The first and foremost contention raised by the Ld. Defence Counsel is that the case falls under Chapter IV of the Indian Penal Code more particularly under Section 96, 97 & 100 IPC which provides the right of private defence to defend his or her own body and the body of any other person against any offence affecting the human body. He contended that the act of the accused is well covered under the provisions of Section 100 of IPC as she was defending the body of her minor SC NO. 62/14 Page No. 14 of 34 daughter 'H' when the deceased (husband of the accused) was attempting sexual assault upon her and that in the process of separating the deceased from her daughter, she put the 'dupatta' around his neck in order to get him separated but he accidentally died. Ld. Counsel further contended that the accused had neither the intention nor knowledge that her act would terminate in the death of the deceased. She simply wanted to save her daughter from sexual assault. The Defence Counsel confined his submissions only to the question of right of private defence.
21. On the other hand, Ld. APP argued that in the complaint as well as in the statement U/s 164 Cr. PC of complainant 'H', she has mentioned that when the deceased tried to untie the knot of the lower/salwar of the complainant, she raised alarm after which the deceased pretended to be asleep. He further argued that the version of the complainant in her statement on oath that the deceased was attempting rape upon the complainant when her mother entered was not corroborated by the complainant in her statement U/s 164 Cr. PC and same is an improvement in order to save the accused (mother of complainant).
SC NO. 62/14 Page No. 15 of 34
22. He further argued that the right of private defence can only be exercised against the assailant and in the present case, the deceased was not the assailant at the moment when he was taken to task and the accused had enough time to have recourse to the protection of the public authorities by way of dialing 100 number or approaching the police at police station.
23. Ld. Additional PP further contended that the way, the accused put the 'dupatta' around the neck of the deceased and pulled it clearly imparts/indicates knowledge on her part that the pulling of the 'dupatta' in such circumstances would lead to death and by no stretch of imagination the accused can be absolved of such knowledge.
24. Ld. Additional PP further argued that the record reveals that the deceased was sexually exploiting the complainant for years together right from her native village in Bareilly to her migrated place in Jaitpur where she was staying with the accused. The record also reveals that even the relatives were aware about the sexual exploitation of the complainant at the hands of the deceased but neither the complainant nor the accused nor any relative ever reported the matter to the police. He submitted that SC NO. 62/14 Page No. 16 of 34 accused cannot take the plea of right of private defence or the defence of grave and sudden provocation when on one night, she noticed the conduct of the accused. Since, right of private defence or the defence of grave and sudden provocation as the case may be cannot be exercised on the whims and fancies of the person claiming to exercise the same rather it comes in the natural course.
25. The incident on the fateful night is not denied on the part of the defence. The only short question which is before this Court is now whether the death of deceased was homicidal or accidental. Further, in case, it was the homicidal whether it was intended or with knowledge as contemplated u/s 300 IPC or it was an act of pure exercise of right of private defence as contemplated u/s 102 IPC. Confronted with these issues, I now proceed to decide the matter.
26. Before further discussion, it would be pertinent to quote Sections 96, 97, 100 and 102 IPC for the sake of convenience and the same are reproduced as under:
Section 96 provides: Things done in private defence Nothing is an offence which is done in the exercise of the right of private SC NO. 62/14 Page No. 17 of 34 defence.
Section 97 provides: Right of private defence of the body and of propertyEvery person has a right, subject to the restrictions contained in Section 99, to defend FirstHis own body, and the body of any other person, against any offence affecting human body;
SecondlyThe 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.
Section 100 provides: When the right of private defence of the body extends to causing deathThe right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely FirstSuch an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
SecondlySuch an assault as may reasonably cause the SC NO. 62/14 Page No. 18 of 34 apprehension that grievous hurt will otherwise be the consequence of such assault;
ThirdlyAn assault with the intention of committing rape;
FourthlyAn assault with the intention of gratifying unnatural lust;
FifthlyAn assault with the intention of kidnapping or abducting;
SixthlyAn assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
27. As per the provision of law embodied in Section 102 IPC also, the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues.
28. In Dev Narain Vs State of UP AIR 1973 SC 473), the SC NO. 62/14 Page No. 19 of 34 Hon'ble Supreme Court further elaborating the provision of Section 102 IPC observed that:
The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in selfdefence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right.
It was further observed by the Hon'ble Supreme Court that:
"In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he SC NO. 62/14 Page No. 20 of 34 got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. There can be little doubt that on the conclusions of the two courts below that the party of the complainant had deliberately come to forcibly prevent or obstruct the possession of the accused persons and that this forcible obstruction and prevention was unlawful, the appellant could reasonably apprehend imminent and present danger to his body and to his companions. The complainants were clearly determined to use maximum force to achieve their end. He was thus fully justified in using force to defend himself and if necessary also his companions against the apprehended danger which was manifestly imminent.
29. Further, mentioning the limitations to the right of private defence in 'Yogendra Morarji V. The State of Gujarat' MANU/SC/0291/1979: AIR 1980 SC 660 at page 666, the Apex Court held that:
... The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and SC NO. 62/14 Page No. 21 of 34 circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under;
Firstly, there is no right of private defence against an act which is not in itself an offence under the Code;
Secondly, the right commences as soon as and not before - a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension;
Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence;
Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of S. 100 Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant.
Sixthly, the right being, in essence, a SC NO. 62/14 Page No. 22 of 34 defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities."
In the said decision, the Apex Court has stated clearly the principles of right of private defence and to what extent it should be used. The right of private defence is available as soon as a reasonable apprehension of danger to the body arises, that in no case the right extends to the inflicting of more harm than it is necessary, that the right extends to the killing of the actual or potential assailant when there was a reasonable and imminent apprehension of any crime enumerated in the six clauses of S.100. Clause 3 of S. 100 says "An assault with the intention of committing rape". If there are sufficient materials on record to show that there was an assault with the intention of committing rape and the accused was within his limit of private defence then it has to be held that the accused was not guilty of the offence.
30. While dealing with the above provisions, the Hon'ble High Court in Sangram Singh Vs Dharam Singh, 2009 NCC 773 also observed as under:
SC NO. 62/14 Page No. 23 of 34
Thus, the only relevant witness with the prosecution is PW 2 Dhoni Devi who has stated that on the date of incident, she had gone to sleep alongwith her eight years old daughter around midnight after having the dinner. Man Singh came and hit the door with his leg because of which the bolt of the door had broken and thereafter he entered in the house and tried to snatch the hasuli (ornament of silver) from her neck and tried to outrage her modesty. He also tried to rape her. She made a noise and on this, the appellant/accused came inside the room (who was going at that time to feed the ox because sowing period of Maduwe crop was on and he was giving the grass to his ox for the morning cultivation). He asked Man Singh, 'who is that', but he had not replied which resulted in the scuffle between the deceased and the appellant/accused as well as between Dhoni Devi and the deceased. In these scuffles, Man Singh sustained the injuries and finally succumbed to his injuries. Dhoni Devi has further stated that the injuries were caused to Man Singh in order to save her modesty.
Thus, from the evidence discussed above, it is proved that whatever injuries Man Singh had sustained were due to the crime which he was trying to commit, i.e. he intruded into the house of Dhoni Devi (PW 2) and tried to outrage her modesty and rape her. He also tried to snatch SC NO. 62/14 Page No. 24 of 34 the hasuli from the neck of Dhoni Devi. Therefore, there was reasonable apprehension that death or grievous hurt would be the consequence had the appellant not exercised the right of private defence as the deceased Man Singh scuffled with the appellant as well as with Dhoni Devi and also tried to commit robbery. The deceased Man Singh even attempted to outrage her modesty and tried to rape her. Under such circumstances, the incident appears to be the result of the acts done in self defence. Therefore, in view of the facts and circumstances of the case, the appellant/accused is entitled for the right of private defence.
31. In (Yeshwant Rao v. State of Madhya Pradesh) MANU/SC/0320/1992 : 1992 Cri. L.J. 2779, the Apex Court held:
"It appears to us that it is a case where the right of private defence arises and the case is fully covered by Ss. 96, 97 read with S. 100 of the Indian Penal Code. Whether it was a case of sexual intercourse with consent or without consent the fact remains that according to the case of the prosecution Chhaya was of 15 years of age and, therefore, the act of Lakhan Singh deceased, would amount to rape within the meaning of S. 375 clause (6) of the IPC. The fact remains that the right of private defence is extendable to the facts of the present case when the daughter of the appellant SC NO. 62/14 Page No. 25 of 34 was being sexually molested. It appears that this part of the case of the appellant was not brought to the notice of the Hight court. The judgment of the High Court mainly deals with the prosecution case only. The right of private defence is fully applicable to the facts of the present case.
32. Relying upon the abovesaid judgment, the Hon'ble High Court of Madras in 'Ramkrishnan Vs State 1998 - 2 - LW (Crl.) 684' also observed as under:
As per Section 97 IPC, the appellant had the right of private defence on the body of 'Dhanapackiyam' who was facing the assault by the deceased with the intention of committing rape. Even if Dhanapackiyam was only a kept mistress of the appellant when the deceased persons had misbehaved with her in such a manner, no person having decency and human sympathy will keep quiet in such circumstances. The deceased have exceeded all limits of decency and they have conducted themselves in most inhuman way. P.W. 1 has admitted in the crossexamination that Swaminathan compelled Dhanapackiyam and spoiled her. P.W. 2 Dhanapackiyam has stated the way by which the deceased Sundaram and Swaminathan assaulted her sexually. She has SC NO. 62/14 Page No. 26 of 34 corroborated the evidence of P.W. 1 in all the relevant aspects. So this case squarely falls under Clause 3 of S. 100 I.P.C. Therefore, the learned Trial Judge was wrong in coming to the conclusion that the appellant had exceeded his right of private defence.
It was further observed that As the facts and circumstances of the instant case are also similar to the case referred, the above decision of the Supreme Court squarely applies to the instant case. In the instant case there is sufficient evidence to show that inspite of begging them by falling on their feet to leave Dhanapackiyam, the deceased persons stood firm in committing sexual intercourse with Dhanapackiyam and they went to the extent of removing her Saree and unfolding her jacket, and squeezed her breast and embraced her. Further evidence of P.W. 1 in the crossexamination shows that Swaminathan compelled Dhanapackiyam and spoiled her. So the appellant was within the limits of Selfdefence as enumerated in Ss. 97, 99 and 100 I.P.C. The findings of the Trial Court are incorrect and the conviction and sentence passed against the appellant have to be set aside.
33. In view of the above legal position, coming first of all to the oral testimonies of the various eye witnesses including the victim and the SC NO. 62/14 Page No. 27 of 34 son of accused. The victim 'H' (name withheld being a minor and victim of sexual abuse) categorically deposed in the Court and confirmed that her father had been repeatedly abusing her sexually for about 2 years which fact she had not only told to her mother but also to the other family members including her brother PW 2 Sh. Afaq Hussain and uncle Ashfaq Ali, PW 8 who had explained that the entire family knew about the objectionable acts of the deceased and many times, they had brought the children of the accused to their home to prevent their exploitation. The victim has also informed that on one earlier occasion, when her mother Husan Bano confronted her father with the same and objected to his acts, she was badly beaten by the deceased fracturing her leg despite which the deceased did not stop his acts. The abovesaid aspects as deposed by the prosecutrix find independent corroboration from the testimony of her brother and other public witnesses namely PW 8 Sh. Ashfaq Ali & PW 9 Smt. Saira Bano.
34. The victim 'H' specifically deposed that her father was into addiction and used to take some tablet ("goli khate the") and this appears to be the case because no sane person in the right sense of his mind would commit such an outrageous act on his own daughter. SC NO. 62/14 Page No. 28 of 34
35. The victim also confirmed that 10 days before the incident, the deceased had again raped her and on the date of incident, when the deceased had come to her at night and forced himself upon her, she raised an alarm hearing which the other family members also woke up and came to her rescue and her mother intervened and in the process, there was a scuffle resulting into the death of her father. The relevant portion of her statement is as under:
".......... My father came down on the floor and started teasing me and attempted to open my kamarband and tried to commit rape upon me. In her words:
"mere saath ched khani shuru kar di aur mere saath rape karne ki koshish karne lage aur mera nada kholne ki koshish karne lage".
"I raised alarm on which my mother woke up and came inside the room. When my mother intervened and tried to remove the deceased who was lying over me, she was pushed away by the deceased. At that time, the deceased continued to attempt rape upon me. My mother again tried to pull him, who was still lying over me by putting a 'dupatta' in his neck which was being resisted by the deceased and in the process, the 'dupatta' was tightened. His breathing stopped and he fell down."SC NO. 62/14 Page No. 29 of 34
36. The above part of her testimony finds independent corroboration from her MLC Ex. PW 16/A proved on record by PW 16 Dr. Nisha Malik and not controverted by the defence. The MLC Ex. PW 16/A establishes that when victim 'H' was taken to the doctor for her medical examination and asked to give the history, she has told the doctor about the history of rape and about the attempted rape on the fateful day which portion also reads as under:
Alleged H/o rape by her father Mohd.
Ashraf multiple times since last one year. History of last episode of intercourse about 10 days back. History of attempted sexual intercourse on 22.06.2013. Father used to threaten her about causing injuries to her brother.
37. This confirms and lends credibility to the victim 'H' 's testimony which she made before this Court. I may also note that in her first statement to the IO and even in her statement U/s 164 Cr. PC before Ld. MM, she had stated that when she raised alarm, her mother came inside, followed by her brother, the deceased pretended to be sleeping and when confronted by her mother, he tried to attack her which attempt was saved by her mother which resulted into the scuffle. SC NO. 62/14 Page No. 30 of 34
38. No doubt, this is different from the version given by her in the Court to the limited extent of the manner in which the death had occurred but there is no material contradiction on the aspect that the deceased was in the room of the victim and tried to commit rape on her on which, she raised an alarm and her mother intervened to save her. Whether the victim threatened to kill herself and whether the deceased was committing rape on her or she was attacked by her father on being confronted by her mother is immaterial because the fact of the matter is that the scuffle had taken place and the accused put her chunni around the neck of the deceased only to pull him away from the victim in order to save her life and honour.
39. The medical record, postmortem report confirms that there were anterior bruises and fractured thyroid cartilage.
"a reddish abrasion of size 1 X 2 cms is present over anterior midline of neck 8 cms below mentum, a reddish abrasion of size 6 X 2 cms is present over left lateral aspect of neck 5.5 cms from left mastoid TIP and a reddish linear abrasion length 4 cms is present on anterior aspect of middle one third of neck. On dissection of neck hematome is present on left lateral and anterior aspect of neck, SC NO. 62/14 Page No. 31 of 34 the underlying muscles and lymph nodes are congested. Thyroid cartilage is fractured. Thracheal mucosa is congested.
40. The abovesaid report is compatible to the oral version of the complainant 'H' and her brother and even to the statement of the accused U/s 313 Cr. PC. There is no other injury on the body of the deceased which confirms that the force used by the accused was necessary to save the life and honour of the victim 'H'. I find the testimony of PW 1 & PW 2 who had corroborated each other on the material aspects credible and authentic. The crime team report Ex. PW 11/A and the six photographs Ex. PA (colly) placed on record also does not confirm or show the use of excessive force, there being no sign of scuffle evident. In my opinion the accused did not use more force than was necessary. The intent or the knowledge so contemplated u/s 300 IPC also do not stand established since it is the case of the prosecution itself that the weapon of offence was only the dupatta which the accused was wearing at the time of incident and which she used in order to save her daughter, in the situation when she found her husband trying to rape their minor daughter and was lying on her when she had put this dupatta around the neck of the deceased to pull him away. It is this, which explains the partial abrasions SC NO. 62/14 Page No. 32 of 34 on the left and left anterior side of his neck resulting into fracture of thyroid cartilage causing instant death of deceased. Had the intent being to kill the deceased, the accused would have wrapped the chunni around the neck of the deceased in order to throttle him and the abrasion mark's would have been found all around the neck and its shape would have been round which is not the case.
41. I have no hesitation in holding that the act of the accused was in the nature of exercise of private defence and had the accused not stopped the deceased, either the deceased would have raped her daughter or would have caused physical harm to her and also the victim 'H' who were resisting his advances to defeat his evil acts as he has previously done when he raped his daughter and fractured the leg of the accused when she objected. Whether he was ravishing her at the time her mother intervened or whether he belligerently attacked them on being confronted is immaterial as in both the circumstances, a reasonable apprehension of imminent and present danger to the body of the accused and his minor daughter has arosen. The said threat was implicit in the conduct of the deceased who on early occasion also committed rape upon her daughter and also seriously injured the accused when confronted. The SC NO. 62/14 Page No. 33 of 34 circumstances in which the accused was placed were amply sufficient to give her right of private defence of the body even to the extent of causing death. There was hardly any time for them to get help from the police. The prevailing circumstances gave rise to a reasonable apprehension that either the victim would be ravished or grievous hurt would be caused if the right is not exercised. It is these circumstances which brings the case of the accused within the limits of self defence as enumerated in Section 96, 97, 100 & 102 IPC and for which, the accused is certainly entitled to be acquitted. The accused accordingly stands acquitted.
ANNOUNCED IN THE OPEN COURT (SUDESH KUMAR)
ON 31.03.2015 ASJ03, S.E., SAKET COURTS
NEW DELHI
SC NO. 62/14 Page No. 34 of 34