Rajasthan High Court - Jaipur
Khem Singh vs The State Of Rajasthan on 1 April, 1978
Equivalent citations: 1978WLN(UC)159
JUDGMENT R.L. Gupta, J.
1. This appeal has been preferred by Khem Singh against the judgment passed by the Sessions Judge, Udaipur on April 17, 1972 by which he convicted the appellant for the offence Under Section 302, Indian Penal Code and sentenced to imprisonment for life for the murder of his own cousin Asu Singh.
2. The deceased Asu Singh alias Asiya and the appellant were cousins. On the day of incident, that is, August i2, 1971 at about 12 noon both of them were grazing their bullocks in Bor-Ki-Kudi-Ki Magri. The bullocks belonging to, Khem Singh entered the 6eld of Asu Singh for grazing. Asu Singh compaired to Khem Singh that he has put his bullocks in his field Khem Singh asserted that the field also belonged to him. This verbal altercation turned into grappling between them. Mst. Bhoori (PW. 2) and Mst. Dakhu (PW. 3), who were present nearby in their fields, asked them not to fight. The deceased and the appellant then separated. Asu Singh went down the hillock and Khem Singh climbed up the hillock. While climbing up Khem Singh abused Asu Singh, whereupon Asu Singh went back towards Khem Singh with a, stick lathi) when Asu Singh reached near Khem Singh, Khem Sinih gave a blow with an axe on the right side of the neck of Asu Singh with an axe which Khem Singh had with him. Asu Singh turned back to go down the hillock but fell down and died Mst. Bhoori (PW. 2) and Mst. Dakhu (P.W. 3) raised an alarm which attracted Kana, who also reached there. Mst. Dakhu (PW. 3) narrated him that had happened Kana went to inform Puran Singh, the father of Asu Singh, at his house but he was not available there. One Panna Singh also went to inform Puran Singh, and while he was going he met Prem Singh (PW 1) in the way and told him that Asu Singh was lying dead at Bor-Ki-Kudi and that he was going to inform Puran Singh. While they were talking Puran Singh, father of deceased Asu Singh, happened to come there. Panna Singh took Puran Singh with him and they reached the spot. Prem Singh first went to his house to leave his bullocks there and there after he also went on the spot. Puran Singh sent Prem Singh to lodge the report at the Police Station, Bhim and he accordingly lodged the report which is Ex. P.3. The Police reached the spot prepared the Panchnama, site plan etc. It also took in its possession a pair of shoes, a small 'lathi' stick, a turban and a 'chilam' lying on the spot. The autopsy of the dead body of Asu Singh (deceased) was performed by Dr. Kesarimal Solanki on August 23, 1971. His statement which was recorded in the committing court is Ex. P.10, The post-mortem report is Ex. P. 1. The appellant was arrested on August 24, 1971. At the time of his arrest an axe was with him. This axe and the 'dhoti' and the turban which he was wearing at that time were also taken into possession by the Police. The appellant was sent to the judicial lock-up on August 25, 1971 and his confessional statement was recorded on August 30, 1971 by the Sub-divisional Magistrate, Bhim which is Ex. P. 11.
3. The appellant was charged & tried for the offence Under Section 302, Indian Penal Code. He pleaded not guilty. As many as 11 witnesses were examined by the prosecution. Mst. Bhoori (PW. 2) and Mst. Dakhu (PW. 3) are the eye-witnesses to the occurrence. PW 5 Kana who reached the spot soon after the occurrence has deposed that he was told by Mst. Bhoori that it was the appellant who has killed Asu Singh. The statement of the doctor recorded in the committing court-Ex p. 10, the confessional statement of the accused before the Sub divisional Magistrate Ex. P. 11 and the statement of the accused before the committing court Ex. P. 12 were also tendered in evidence.
4. The appellant Khem Singh in his statement recorded Under Section 342, Code of Criminal Procedure (1896) admitted that there had been grappling between him and Asu Singh. Asu Singh caught the appellant by the neck and fell him down on the ground 5-3 times, but he did not know what happened thereafter. He also admitted that his dhoti and the turban were stained with blood but they were blood stained because of the injuries on his elbow and back. He also admitted that he was armed with an axe bit denied that the axe Ex. P. 10 belonged to him. Regarding his statement recorded by the Sub divisional Magistrate Under Section 164, Code of Criminal Procedure he has stated that he was examined by the Sub-divisional Magistrate but denied to have stated that he had inflicted the axe blow on Asu Singh. He denied his statement Ex. P. 12 having been made by him before the committing court. He did not produce any evidence in his defence.
5. It has not been disputed that Asu Singh died as a result of homicidal violence. There is the evidence of Mst. Bhoori (PW. 2) and Mst. Dakhu (P.W. 3) to the effect that Asu Singh WAS inflicted kulhari blow on his neck and as a result of the injury he succumbed on the spot. Dr. Kesari Mai Solanki, in his statement Ex. P. 10, has stated that he had performed the autopsy on the dead body of Asu Singh on August 23, 1971 and found the following external injuries on his person:
1. Oblique incised wound 4" x 2"x 3" right side of neck, radiating from above downwards and forwards starting below right ear lobule.
2. Incised wound 1" x 1/4" x 1/4" right ear lower part.
3. Abrasion 1/4" x 1/6" anterior surface of right leg, middle part.
4. Abrasion 1" x 1/2" posterior surface of left elbow joint.
5. Superficial abrasion 10" x 3" lateral surface of the left thigh upper part.
6. On internal examination, he further found the carotid artery and jugular vein cut on account of the incised wound on the right side of the neck In his opinion the cause of death was syncope due to severe hemorrhage caused by the incised wound on the neck According to him the death hid taken place within 24 hours of his examination He has proved the post-master report Ex. P.1. He also stated that the injuries Nos. 1 and 2 could have been caused by an axe. He was also of the opinion that the injury No. 1 was sufficient in the ordinary course of nature to cause death. He also stated that the injuries Nos. 3, 4 and 5 could be possible by a fail Thus it has been fully established that Asu Singh died of the injury received by him on his neck with an axe and his death was due to homicidal violence.
7. The next question that calls for our consideration is whether the appellant was the author of the fatal injury on the person of Asu Singh? On this point the prosecution has produced Mst. Bhoori (PW. 2) and Mst. Dakhu (PW. 3) as eye-witnesses. These witnesses were present at the time of occurrence. According to Mst. Bhoori (PW 2) Asu Singh (deceased) asked the appellant why he had driven away the bullocks from the field, whereupon the appellant asked Asu Singh why he had put the bullock in his field, and on this verbal altercation both of them grappled. Ms. Bhoori (PW. 2) asked them not to quarrel and she ran towards them. While she was at a distance, the deceased and the appellant separated. Asu Singh came down the hillock and Khem Singh climbed up the hillock. Then Khem Singh abused Asu Singh. On this Asu Singh came back toward the appellant with a stick (lathi). The appellant struck a 'kulhari' blow on the right side of the neck of Asu Singh. Asusingh turned back to go down the hillock pitting his hard on his neck, but he fell down and died. She went near Asu Singh & found him dead. Khem Sirgh appellant ran away. Mst. Dakhu (PW. 3) has also corroborated the statement of Mst. Bhoori (PW. 2) both these eyewitnesses are independent and their presence at the scene of occurrence was natural. Nothing has been elicited in their cross-examination to discredit their testimony. Their evidence is further corroborated by the statement of Kana (PW. 3) to whom Mst. Bhoori (PW. 2) in formed that it was the appellant who has killed Asu Singh. Their statement further finds corroboration from the medical evidence of Dr. Kesarimal. The learned Sessions Judge held the evidence of the eye witnesses to be wholly reliable. We have also perused the evidence of these witnesses, We do not find any infirmity in this evidence which may cast a doubt on their credibility. On the other hand, we are satisfied that their testimony is quite cogent, convincing & wholly reliable. More over there it the confessional statement Ex P. 12, which was made by the appellant, before the Sub divisional Magistrate Bhim on August 30, 1971. Thus the prosecution has left no doubt in our mind that it was the appellant Khem Singh who inflicted the fatal blow by an axe on the neck if Asu Singh (deceased) and as a result of which Asu Singh died.
8. It has, however been contended before us by the learned Counsel for the appellant that the appellant is not guilty as he had acted in the exercise of his right of private defence of person. His contention is that admittedly Asu Singh (deceased) was physically stronger than the appellant. Earlier there had been grappling between the two and in that grappling Asu Singh fell down the appellant 5-7 times and they were separated. Subsequently when the heat of passion had not vet subsided Asu Singh ran towards the appellant with a 'Lathi' in his hand in a mood of anger and the appellant having been put in that situation apprehend id his death or at least grievous injury at the hands of Asu Singh, therefore, the appellant in his right of private defence inflicted the axe blow which unfortunately fell on the neck of Asu Singh deceased. It is also in evidence that the appellant received a number of injuries on his person in this incident it has, therefore, been urged by the learned Counsel for the appellant that the appellant gave an axe blow in the exercise of his right of private deface. He had relied on Dominic v. State of Kerala . In that case George killed his brother Dominic It was found that Dominic was aggressor and when he was picking up a large piece of stone, George had a reasonable apprehension that Dominic would kill him or would cause him grievous hurt Dominic was picking up a stone of a dangerous size. The previous incidence of quarrel in the past was also there.
9. Whether a right of private defence is available or not to the accused is a question of fact and is to be adjudged in the light of the facts and circumstances of each case. It is true that in proving such a right the burden on accused is not as onerous as that which lies on the prosecution to prove its case While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. The accused who pleads an exception is entitled to be acquitted, if upon a consideration of the evidence as a whole a reasonable doubt is created in the mind of court about the guilt of the accused. The accused even if he fails to discharge his duty fully by establishing the existence of an exception, may get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused.
10. This point i.e., the right of private defence was also contended before the learned Sessions Judge but he did not accept this contention of the accused It was held by the learned Sessions Judge as a fact that in the facts & circumstances of this case Khem Singh had no right of private defence. According to him the quarrel arose all of a sudden about the grazing of bullocks in the field. Both of them grappled. In the course of that grappling Khem Singh received injuries which were just bruises Thereafter they separated. It was Khem Singh who again abused Asu Singh. On account of this abuse he turned back and went towards Khem Singh. Asu Singh had a small stick of 'Babul tree' Ex. 1 which was recovered from the spot. He did not raise the stick to strike the appellant. This Lathi' which Asu Singh had in his hand at the time was as a matter of fact not a 'Lathi' but just a small stick and it could not be said that in the circumstances the appellant could have apprehended death or a grievous hurt. According to the learned Sessions Judge such a stick would not have caused a grievous injury, much less an apprehension of death. In these circumstances the appellant could not claim any right of private defence. Moreover, according to the learned Sessions Judge there was mutual fight and the question of right of private defence does not arise in such a sudden and mutual fight.
11. We have given our anxious consideration to this contention of the learned Counsel. It may be said that the deceased and the accused-appellant were cousins and that they had no previous animosity. Asu Singh could not be expected to entertain are idea to cause the death of the appellant It was all of a sudden that both the cousins quarreled on a trifling matter regarding grazing of the bullocks in the field & they grappled & separated. There after Khem Singh abused Asusirgh Asusingh, who had a 'Lathi' in his hand ran towards Khem Singh. The appellant gave a trail blow by an axe on the neck of Asu Singh. In the circumstances of the case we do not feel inclined to hold that the appellant could have the apprehension of receding injuries at the hand of the deceased Asu Singh as he came back in a challenging mood t wards the accused with a small La hi in his hand. However, it is a necessary incidence of the right of private defence that the force used must bear a reasonable proportion to the injury to be elevated. Undoubtedly, a person in fear of his life is not expected to modulate his defence step by step or tier be tier but Section 99 of the I.P.C. provides in terms clear & categorical that the right in no case extends to the infliction of more harm than it is necessary fir the purpose of defence In the present case there was simply a grappling be been the two cousins on a trifling matter and during that grappling some minor abrasions were received by one of them. There after Asu Singh retired but Khem Singh appellant abused him and Asu Singh came towards him in an enraged and challenging mood with a stick. The appellant struck a 'Kulhari' blow on a vital part of the body of the deceased as a result of which the deceased died on the spot.
12. The law of self defence provides that when a person is suddenly faced with an attack to his person or property and immediate aid from the State machinery is not readily available, that person is entitled to defend himself and resist the attack and inflict on the attacker any harm that is necessary for the purpose of defence The necessary corollary to this is that the violence which a person defending himself is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended & must not exceed its legitimate purpose, & the (sic) exercise of the right of private defence must not be malicious or vindictive. It is true that in jointing the conduct of a person, who claims the right of private defence allowance has necessarily to be made for feeling at the relevant time. When a person is faced with an assault that inevitably creates in his mind some excitement and confusion. At such a moment, the upper most feeling in his mind is to ward off the danger & to save himself against the assault & so he would naturally be anxious to strike a decisive blow in the exercise of his right. It is true that in striking a decisive blow, he must not use more force than is reasonably necessary.
13. In the present case, the appellant & the deceased who were cousins, quarreled on a matter which can be said to be trifling and grappled with each other. Asu Singh fell down the appellant but they separated and went in different directions. Khem Singh appellant abused the deceased on which the deceased turned back with a lathi in his hand. That lathi was, however, not a lathi in strict sense but was a stick. This might have caused a reasons able apprehension of assault in the mind of the appellant when the deceased turned back with a stick & the appellant was to face an assault, but the appellant could not be s lid to have the apprehension of death or of receiving grievous injury. The appellant struck a decisive blow with a kulhari on a vital part of the deceased in order to ward off the danger of assault. In the circumstances, it cannot ht said that she appellant did nit use more force than was reasonably necessary. In fact, the appellant did use more force than reasonably necessary in the circumstances of the case. Thus the appellant caused the death of the deceased Asu Singh by exceeding his right of private defence. An offence of this nature is therefore punishable under part (sic) of Section 304, I.P.C. Reference may be made in this connection to Munney Khan v. State of M.P. . The conviction of the appellant must, therefore, be altered from Under Section 302 IPC to one Under Section 304 part I, I.P.C.
14. As a result, the appeal is partly allowed. The conviction of the appellant Under Section 302, IPC is set aside and instead the appellant is convicted under the 1st part of Section 304, I.P.C. In view of the change in the offence, for which the appellant is being punished, we set aside the imprisonment for life and instead award him a. sentence of seven years' rigorous imprisonment and a fine of Rs. 20/-, in default of fine he shall further under go rigorous imprisonment for three months The appellant is entitled to a claim of set off for the period of detention if any undergone by him during the investigation, inquiry or trial of the case against the term of imprisonment in view of the provisions of Section 428, Cr.P.C.. 1973.