Himachal Pradesh High Court
State Of H.P vs Rakesh Kumar & Anr on 5 January, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 597 of 2008.
Reserved on: January, 02, 2015.
Decided on: January 05, 2015.
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State of H.P. ......Appellant.
Versus
Rakesh Kumar & anr. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG.
For the respondents: Mr.N.S.Chandel, Advocate.
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Justice Rajiv Sharma, J.
The State has instituted this appeal against the judgment dated 28.6.2008, rendered by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 27-ST/7 of 2007, whereby the respondents-accused (hereinafter referred to as the accused) who were charged with and tried for offences under Sections 302, 451, 506 IPC read with Section 34 IPC, were acquitted by the learned trial Court.
2. The case of the prosecution, in a nut shell, is that PW-2 Dharmi Devi was married with Mittar Singh about 12 years back. He was working as labourer. On 13.6.2007, at about 7:00 PM, accused Dinesh who is son of Uncle (Taya) of Mitter Singh came to his house and asked her husband to attend a party at his house in connection with his wedding. Mitter Singh went to the nearby house. At about 10:00 PM, while she was sleeping, she heard the noise of coughing of her husband. She switched on the light and came out. In the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 2meantime, accused Rakesh came there murmuring something and grappling with her husband. Thereafter, accused Dinesh also reached there. She went to the adjoining house of her younger brother-in-law Ranjit Singh and came back with him to the spot. They say accused Dinesh grappling with her husband.
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Accused Rakesh all of a sudden gave danda (balli) blow on the head of her husband. On account of this blow, her husband fell down on the ground.
Thereafter, she and Ranjit Singh saved Mittar Singh from the clutches of both the accused. Both the accused left the place. Mittar Singh succumbed to his injuries on 14.6.2007 at 9:00 AM. The statement of Smt. Dharmi Devi was recorded under Section 154 Cr.P.C. and sent to the Police Station Paonta Sahib on the basis of which FIR No. 209 of 2007 was registered under Sections 302, 451, 506, 34 IPC against the accused persons. The case was investigated by ASI Harjit Singh. He took into possession the Balli, the blood stained clothes of the deceased and accused Rakesh. The post mortem of the deceased was got conducted. The doctor opined that Mittar Singh had died due to direct injury to brain leading to coma and shock and associated contributory factor was left lung injury. The matter was investigated and challan was put up after completing all the codal formalities.
3. The prosecution has examined as many as 13 witnesses to prove its case. The accused were also examined under Section 313 Cr.P.C. According to them, they have requested Mittar Singh to join the dinner. He insisted for more liquor. The accused refused to serve more liquor. Accused Rakesh Kumar went to his house requesting him to join them for dinner. Mittar Singh came back to his house. Mittar Singh was angry and he gave three darat blows one after the other on the person of accused Rakesh, which resulted in causing injuries on ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 3 his left arm, nose and back. When Mittar Singh was about to give fourth blow with Darat accused Rakesh apprehending his death at the hands of Mittar Singh picked up a Danda lying in the courtyard of the house of Mittar Singh.
He gave a blow with it to thwart the attack of Darat. The blood was oozing out .
of the injuries sustained by him due to darat blows given by Mittar Singh. On the next morning i.e. on 14.6.2007, he was taken to a nearby village Nagheta to Dr. Upender, who stitched his two wounds, besides dressing the third wound.
The learned Trial Court acquitted the accused on 28.6.2008. Hence, the present appeal.
4. Mr. M.A.Khan, learned Addl. Advocate General has vehemently argued that the prosecution has proved its case. On the other hand, Mr. N.S.Chandel, Advocate, appearing for the accused has supported the judgment of the learned trial Court dated 28.6.2008.
5. We have gone through the impugned judgment dated 28.6.2008 and records of the case carefully.
6. PW-1 Dr. Rakesh Dhiman has conducted the post mortem on the dead body of deceased. He issued report Ext. PW-1/C. According to him, the deceased died due to direct injury to brain leading to coma and shock.
Associated contributory factor was left lung injury. The duration of injury and death could not be ascertained and duration between death and post mortem was within 36 hours approximately.
7. PW-2 Dharmi Devi is the wife of deceased Mittar Singh. She testified that at about 7:00 PM, accused Dinesh called her husband and took him to his house where they have arranged some party in lieu of his marriage.
Her husband went with accused Dinesh to his house and at about 10:00 PM ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 4 when she was sleeping in her house, she heard the coughing of her husband in the courtyard. She switched on the light of her room and came out. She saw Rakesh was having scuffle with her husband and accused Dinesh also came on the spot. Dinesh also started giving beatings to her husband with fist blows .
and were hurling abuses. She immediately rushed to call her brother-in-law Ranjit (Devar). When she and Ranjit Singh reached the spot at that time Dinesh was giving beatings to her husband and Rakesh accused gave danda (balli) blow on the head of her husband and her husband fell down in the courtyard. She and Ranjit Singh rescued her husband from the clutches of accused and both the accused ran away from the spot leaving behind danda. Her statement was recorded under Section 154 Cr.P.C. vide Ext. PW-2/A. Sketch map was prepared.
Danda was also taken into possession vide Ext. PW-2/B. She identified danda Ext. P-1 in the Court. In her cross-examination, she deposed that Dinesh Kumar came at about 7:00 PM and took her husband to his house, forcibly to attend the party. There was no dispute till then. She also admitted that her husband came back without taking meals after feeling annoyed. She admitted that her husband had picked up the darat from the Courtyard.
Volunteered that Rakesh had given danda blows upon her husband and thereafter he picked the darat. She did not see her husband giving darat blows which hit at the back of accused Rakesh. She did not see her husband giving second blow of darat which hit at the face of accused Rakesh and caused the wound to him. She did not know that her husband gave third blow of darat to Rakesh at that time which hit at left of Rakesh and caused injury to him. She had at that time gone to call Ranjit. She admitted that at the place of incident there were big stones and boulders. She also admitted that Rakesh picked up ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 5 Ext. P-1 danda from the courtyard and hit her husband. When she and Ranjit reached the courtyard at that time, her husband was already lying on the ground. She admitted that Rakesh hit her husband with Ext. P-1 danda to save himself from her husband. Volunteered that her husband also gave blows to .
Rakesh to save himself. According to her, Rakesh gave only single blow with Ext. P-1 on account of which her husband fell on the ground. She admitted that Dinesh took his brother Rakesh to Nagetha to a private Doctor to provide him first aid.
8. PW-3 Ranjit Singh deposed that at about 10:00 PM, his brother came back to his house and he heard voice in the courtyard of his brother. PW-
1 Dharmi Devi came to his house and informed him that Rakesh was quarrelling with his brother and giving fist blows to her husband. He alongwith PW-1 Dharmi Devi reached the courtyard of the house of his brother where they saw Rakesh was giving beatings to his brother with fist blows. Dinesh accused also reached on the spot and started giving beatings to his brother Mittar Singh with fist blows. Accused Rakesh gave danda blow on the head of his brother.
His brother Mittar Singh fell down on the ground. Both the accused ran away from the spot, leaving behind danda Ext. P-1. He admitted in his cross-
examination that accused Dinesh invited his brother to the feast and he participated in the dinner at about 7:00 PM on 13.6.2007 in the house of accused. He also admitted that Sh. Mukh Ram and Balbir resident of Kalatha were invited by the accused persons for dinner on 13.6.2007. They also participated in the same. The accused persons disclosed that there was no more liquor in the house and were requesting for taking dinner. He also admitted that when he arrived on the spot Mittar Singh was lying on the ground ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 6 and Rakesh was holding him from the clothes near the neck. He also admitted that Rakesh was also bleeding. He also admitted that Rakesh went to private hospital in Negheta for taking first aid.
9. PW-4 Smt. Kamla Devi deposed that Mittar Singh was her son. He .
was married with Dharmi Devi PW-2 about 12 years back. At about 10 PM, PW-
2 Dharmi Devi called Ranjeet Singh from his house and on hearing noise she also woke up and came out from her room and reached in the courtyard of the house of Mittar Singh. In her presence accused Dinesh gave kick and fist blows to Mittar Singh. Accused Rakesh Kumar gave lathi/balli blow on the head of Mittar Singh and Mittar Singh fell on the ground. The blood started oozing out from the wound. She admitted in her cross-examination that her sons had cordial relations with the accused before the incident. She did not notice the blood coming out from the wounds of Rakesh.
10. PW-5 Const. Ved Prakash deposed that on 15.6.2007 ASI harjit Singh deposited with him five parcels duly sealed with seal 'T' allegedly containing blood stained earth, danda and blood stained clothes. He deposited the parcels in the Malkhana and on 18.6.2007. He sent all the parcels through HHC Lal Bahadur vide RC No. 407 to PS Paonta Sahib.
11. PW-6 HHC Lal Bahadur deposed that MHC Ved Parkash handed over with him five sealed parcels duly sealed with seal 'T' and 'H' vide RC No.
407. He deposited the parcels with MHC Police Station Paonta Sahib on the same day.
12. PW-7 HC Raghubir Singh deposed that HHC Lal Bahadur deposited with him five parcel duly sealed with 'T' and 'H' containing blood stained earth, control sample of earth, danda and blood stained clothes.
::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 713. PW-8 HHC Ram Kumar deposed that on 22.6.2007 HC Raghubir Singh handed over to him nine parcels duly sealed with seals 'T', 'H', and 'CH' to be deposited with Chemical Examiner Junga. He deposited the same with Chemical Examiner, Junga.
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14. PW-9 Guman Singh deposed that on 15.6.2007, police took into possession blood stained earth from the courtyard of Mittar Singh. These samples were sealed in polythene envelope and sealed with seal 'T' in a parcel.
The police also took into possession danda (balli). It was measured and sketch map was prepared and sealed with cloth with seal 'T'. These were taken into possession vide memo Ext. PW-2/B. The police also took into possession the blood stained clothes vide memo Ext. PW-3/S. Accused Rakesh Kumar produced a shirt, nikkar and baniyan to the police and police took into possession vide memo Ext. PW-9/A.
15. PW-10 Sukhwinder Singh and PW-11 Shyam Chand and PW-13 Insp. Narveer Singh are formal witnesses.
16. PW-12 ASI Harjit Singh has carried out the investigation. He deposed that on 14.6.2007 at about 9:30 PM information was received at Police Post Singhpura that in village Kalath Badhana Masrani, one person has died in suspicious circumstances. The information was reduced into writing. He immediately proceeded to the spot. He recorded the statement of Dharmi Devi vide memo Ext. PW-2/A. He took the photographs of the spot. The inquest papers were prepared vide Ext. PW-1/B. He also prepared the site plan. He took into possession the Balli. In his cross-examination, he admitted that the accused Rakesh Kumar had three wounds i.e. one at the face, another at the ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 8 arm and third at the back of the left arm. He also admitted that Mittar Singh and accused persons had consumed liquor in the dinner party.
17. DW-1 Dr. Rakesh Dhiman has examined the accused Rakesh Kumar on 15.6.2007. He found following injuries on his person:
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"1. Nose- On left side of nose there was irregular cut lacerated wound size 0.5 cm.
2. Over left arm-back, there was stitched wound 3.5 cm. shown as wound A in the figure on MLC.
3. On back there was 7 cm. stitched linear wound shown by mark B in the figure on MLC."
18. DW-2 Dr. Upender Singh deposed that he is RMP. On 14.6.2007, injured Rakesh Kumar came to him. He had three injuries on his person. One on the left shoulder, second on his back and third on his nose. The injuries on the shoulder and the back were bleeding and had deep cut marks whereas the injury on the nose was not carrying deep cut mark. In his cross-examination, he deposed that injury on the back was ½ inch deep and on the shoulder it was still deeper.
19. DW-3 Dr. Brejesh Sharma, has brought the medical record of Rakesh Kumar who was brought to Jail Dispensary on 22.6.2007. There were three injuries one on back and left shoulder, second was on left upper arm and third was found on left side of nose. The first two injuries were stitched.
20. DW-4 Balbir Singh deposed that they were taking liquor till 9 or 9:30 PM. Thereafter they took food. Mittar Singh also took liquor. Mittar Singh was demanding more liquor and Dinesh and Rakesh refused to serve more liquor on account of which he refused to take dinner and left for home. The house of Mittar Singh was at a distance of about 100/150 meters away from the house of Rakesh and Dinesh. After some time, they heard cries for help coming from the side of the house of Mittar Singh. The voice was of Rakesh. He ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 9 stopped taking food and rushed towards that side. Dinesh, Surat Singh and Mukh Ram also reached there. They saw Rakesh bleeding profusely and Mittar Singh was holding a darat in his hand. He was about to inflict other blow with it on Rakesh Kumar but his attempt was foiled by Rakesh. Rakesh lifted a stick .
lying nearby and gave a blow on Mittar Singh. Mittar Singh then fell on the stone. Mittar Singh was drunk at that time. Rakesh was brought to his house where Mittar Singh was kept inside his house by his family members. Rakesh was given first aid.
21. DW-5 Mukh Ram has deposed that on 13.6.2007, Dinesh had invited him alongwith Balbir Singh, Surat Singh, Mittar Singh and Rakesh for a dinner party of his marriage in his house. They consumed liquor in the party till 9:30 PM. Mittar Singh was demanding more liquor and Dinesh and Rakesh refused to serve more liquor on account of which he refused to take dinner and left for home. They all asked Rakesh to go and bring back Mittar Singh for dinner. Rakesh went to the house of Mittar Singh. After some time they heard the cries of Rakesh 'bachao bachao' from the house of Mittar Singh. He alongwith Dinesh, Balbir Singh and Surat Singh left the dinner midway and rushed towards the house of Mittar Singh. They saw Rakesh was bleeding profusely and mittar Singh was having Darat in his hand and was about to hit Rakesh with Darat. In the meantime, Rakesh picked up a danda and hit Mittar Singh in self defence on account of which Mittar Singh fell down.
22. What emerges from the facts, enumerated hereinabove, is that Dinesh had called Mittar Singh at about 7:00 PM. Mittar Singh went with accused Dinesh and came back to his courtyard. According to PW-2 Dharmi Devi, the wife of deceased, her husband came back to his house at 10:00 PM.
::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 10Dinesh was grappling with him. Rakesh also appeared on the spot. In her examination-in-chief, she deposed that she rushed to call her brother-in-law Ranjit Singh. When she and Ranjit Singh reached the spot, at that time, Dinesh was giving beatings to her husband. Rakesh gave 'danda' blow on her husband.
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In her cross-examination, she admitted that her husband has picked up a darat from the courtyard. She admitted that Ext. P-1 danda was lying in the courtyard. She also admitted that when she and Ranjit Singh reached her courtyard, at that time, her husband was already lying on the ground. Similarly, PW-3 Ranjit Singh has deposed that when he arrived on the spot, Mittar Singh was lying on the ground and Rakesh was holding him from the clothes near the neck though, in his examination-in-chief, he deposed that when reached the courtyard of the house of his brother, he saw Rakesh was giving beatings to his brother with fist blows. There is variance in the statements of PW-2 Dharmi Devi and PW-3 Ranjit Singh, the manner in which the incident has taken place.
According to PW-2 Dharmi Devi and PW-3 Ranjit Singh, they have seen accused Rakesh giving danda blow on the head of Mittar Singh. In their cross-
examination, they deposed that when they reached on the spot, Mittar Singh was already lying on the ground. PW-4 Smt. Kamla Devi has admitted in her cross-examination that her sons had cordial relations with the accused persons before the incident. The defence set by the accused precisely is that Mittar Singh had come to their house. He was served liquor. They offered him food.
Mittar Singh refused to accept the food. They went to his house to request him to take dinner. Mittar Singh gave three darat blows one after the another and caused injuries to Rakesh Kumar. He received three injuries. He was taken to private doctor. According to PW-2 Dharmi Devi, her husband has picked up ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 11 darat from the courtyard. She also admitted that Rakesh hit her husband with Ext. P-1 danda to save himself from her husband. Though, volunteered that her husband also gave blows to save himself. She also admitted that Rakesh has only given one single blow with Ext. P-1 danda. It has come in the statement of .
DW-1 Dr. Rakesh Dhiman that accused Rakesh Kumar received three injuries as per MLC Ext. DW-1/A. DW-2 Dr. Upender Singh also noticed three injuries on the person of accused Rakesh. DW-3 Dr. Brejesh Sharma, also deposed about the three injuries received by accused on left shoulder, left upper arm and left side of nose. Accused Rakesh Kumar has received three injuries on his person. He was also taken to private hospital of DW-1. DW-4 Balbir Singh deposed that they reached on the spot and saw Rakesh profusely bleeding and Mittar Singh was holding a darat in his hands and was about to inflict other blow with it on Rakesh Kumar but his attempt was foiled by Rakesh by lifting a nearby stick and gave blow on Mittar Singh. Similarly, DW-5 deposed that when they reached on the spot, they saw Mittar Singh having darat in his hands. He was about to hit Rakesh with Darat and in the meantime, Rakesh gave danda blow and Mittar Singh fell down. Rakesh has given danda blow to Mittar Singh in self defence. There is sufficient material on record to come to the conclusion that the accused Rakesh Kumar was hit by Mittar Singh with Darat. PW-2 Dharmi Devi who is the wife of the deceased, as noticed by us hereinabove, has admitted that accused hit her husband with Ext. P-1 danda to save himself. In view of this, it can safely be concluded that Rakesh Kumar has inflicted injury on the head of Mittar Singh to save himself from darat blows given by Mittar Singh. Accused Rakesh Kumar has not exceeded his right of private defence. Darat (sickle) is a sharp edged weapon used by the deceased.
::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 12The prosecution has not taken into consideration the injuries received by the accused as per the statement of DW-1 Dr. Rakesh Dhiman, DW-2 Dr. Upender Singh and DW-3 Dr. Brejesh Sharma. In the instant case, the three alleged eye witnesses were from the same family. In these circumstances, the injuries on .
the person of accused assumed much greater importance.
23. Their lordships of the Hon'ble Supreme Court in the case of The State of Gujarat Vrs. Bai Fatima and another, reported in AIR 1975 SC 1478, have held that the burden of establishing the plea of right to self defence is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. Their lordships have held as under:
"18. In Munhi Ram and others v. Delhi Administration(1) Hegde, J delivering the judgment of this Court has said at page 458 :
"It is true that appellants in their statement under section 342 Cr.
P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-examination of the prosecution witnesses as well as by adducing defence evidence. It is well-settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record-see In Re-jogali Bhaige Naiks and another A.I,R. 1927 Mad. 97. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."
24. Their lordships of the Hon'ble Supreme Court in the case of Lakshmi Singh and ors. etc. vrs. State of Bihar, reported in AIR 1976 SC 2263, have held that in a murder case, the non-explanation of the injuries ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 13 sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
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(1) that the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
Their lordships have held as under:
"11. P.W. 8 Dr. S. P. Jaiswal who had examined Brahmdeo deceased and had conducted the postmortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the Court, on April 22. 1966 and found the following injuries on his person:
1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.
2. Incised wound 1" x 2 m. m. x skin subcutaneous deep on the late ral part of the left upper arm, near the shoulder joint.
3. Punctured wound 1/2" x 2 m. m., x 4 m. m. on the lateral side of the left thigh about 5 inches below the hip joint.
According to the Doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 14 explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, .
higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:
"The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai
14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly pro-babilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:
::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 15In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows:
In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:
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(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosedition one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 16 will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court inState of Gujarat v. Bai Fatima Criminal .
Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
25. Their lordships of the Hon'ble Supreme Court in the case of Salim Zia vrs. State of Uttar Pradesh, reported in AIR 1979 SC 391, have held that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying a basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. Their lordships have held as under:
"11. The appellant has also not established by examining any of the three witnesses alleged by him in his report (Exh. Ka. 13) to be working in the vicinity of the place of occurrence or by eliciting from the eye witnesses produced by the prosecution or summoned and examined by the Court that Habib deceased-fired any shot at him from revolver (Exh. 4) and that it was only in self defence that he fired the shots from the gun in his possession which resulted in the death of the deceased. Muzammil (P.W.7) has in answer to a question put to him in cross-examination emphatically denied that Habib deceased was armed with a revolver or that he fired any shot in the course of the incident which resulted in his death. Azmat Ali (P.W.1) has also unequivocally stated in cross-examination that ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 17 Habib deceased did not use any revolver at the spot and that neither he nor Habib committed any theft of the paddy as alleged by the appellant. Even Athar Ali and Mst. Shafiqan who were examined as Court witnesses have clearly stated that Habib did not fire any pistol at the spot. It is, therefore, crystal clear that the Sessions .
Judge grossly erred in assuming that the appellant was fired at by Habib and that it was in exercise of the right of private defence that he in turn fired at Habib to save his own life."
26. Their lordships of the Hon'ble Supreme Court in the case of Yogendra Morarji vrs. The State of Gujarat, reported in AIR 1980 SC 660, have laid down the following principles of private defence of body as under:
"13. 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 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 (Section
102). That is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not & 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. (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 18 the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; 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 Section 100. For our purpose, only the first two clauses of Section 100 are relevant The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; 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 assailent; Sixthly; the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities." (Section
99).
14. Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence, may also be seen, Section 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other Law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this Section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 19 the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after .
the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in Dahyabhai v.
State of Gujarat , under Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist.
The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.
16. Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where, despite the failure of the accused to discharge his burden under Section 105, the material brought on the record may, in the totality of the facts and ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 20 circumstances of the case, be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the Code (See Dahyabhai v. State of Gujarat (ibid) State of U. P. v. Ram Swarup , Pratap v. State of U.P."
.
27. Their lordships of the Hon'ble Supreme Court in the case of Darshan Singh vrs. State of Punjab and another, reported in (2010) 2 SCC 333, have reiterated the principles and scope of right of private defence as under:
" 25. When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.
26. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though in process of time much attenuated by considerations of necessity, humanity, and social order. According to Bentham, in his book `Principles of Penal Laws' has observed "the right of defence is absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.
27. Killing in defence of a person, according to the English law, will amount to either justifiable or excusable homicide or chance medley, as the latter is termed, according to the circumstances of the case.
28. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account of the initial provocation given by the person who has to defend himself in the end against an assault endangering life.::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 21
29. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.
.
30. The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said:
"It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other."
But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.
31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.
32. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.
33. A legal philosopher Michael Gorr in his article "Private Defense"
(published in the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as under:::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 22
"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict serious (even lethal) harm upon another person in order to protect oneself or some innocent third party from suffering the same".
34. The basic principle underlying the doctrine of the right of .
private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
35. This court in number of cases have laid down that when a person is exercising his right of private defence, it is not possible to weigh the force with which the right is exercised. The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of America (1921) 256 US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly observed "detached reflection cannot be demanded in the presence of an uplifted knife".
36. According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right every reasonable allowance should be made for the bona fide defender. The courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.
37. The courts have always consistently held that the right of private defence 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 section 100 of the IPC. According to the combined effect of two clauses of section 100 IPC taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 23 assault is attempted or directly threatened. When we see the principles of law in the light of facts of this case where Darshan Singh in his statement under section 313 has categorically stated that "Gurcharan Singh gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell down. I felt that my father had been killed. Gurcharan Singh then advanced towards me holding the gandasa. I apprehended that I too would be .
killed and I then pulled the trigger of my gun in self defence."
Gurcharan Singh died of gun shot injury.
38. In the facts and circumstances of this case the appellant, Darshan Singh had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself.
BRIEF ENUMERATION OF IMPORTANT CASES:
39. The legal position which has been crystallized from a large number of cases is that law does not require a citizen, however law- abiding he may be, to behave like a rank coward on any occasion. This principle has been enunciated in Mahandi v. Emperor [(1930) 31 Criminal Law Journal 654 (Lahore); Alingal Kunhinayan & Another v. Emperor Indian Law Reports 28 Madras 454;
Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181.
40. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.
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 ::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 24 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.
(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."
28. In the case of Madan Chandra Dutta vrs. The State of Assam, reported in 1977 CRI.L.J. 506, the division Bench of the Gauhati High Court has held that apprehension of grievous injury is enough for the exercise of the right and the actual injury is not essential. It has been held as under:
"9. Section 96 of the Penal Code provides Nothing is an offence which is done in the exercise of the right of private defence.
Relevant portion of Section 100 of the Penal Code may also be extracted:
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section to the voluntary causing of death ..., if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
....::: Downloaded on - 15/04/2017 17:28:35 :::HCHP 25
Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
Section 100. 'Secondly', provides that the accused may not even wait till the causing of the grievous injury; apprehension of grievous injury is enough for the exercise of the right. In the instant case the deceased being armed with dao caused grievous injury to the appellant. Therefore, the appellant .
undoubtedly had the right granted by law under Section 100 and as in exercise of that right, he killed the deceased, in our opinion, he has committed no offence."
29. In the instant case, the accused has received three injuries from a sharp edged weapon and his defence is probablized by the statements of witnesses produced by the accused. The prosecution has failed to the prove the case against the accused under Section 302, 451, 506 IPC read with Section 34 IPC.
30. Since there are inherent improbabilities, serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances, the prosecution has failed to prove the case against the accused beyond reasonable doubt.
31. Accordingly, there is no merit in this appeal and the same is dismissed. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 28.6.2008.
( Rajiv Sharma ), Judge.
January, 05, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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